Federal Preemption

Undercutting State Protections for Health, Safety and the Environment

Article VI of the U.S. Constitution makes clear that where federal and state laws conflict, federal law takes precedence. But what happens when state laws conflict not with federal law, but with federal regulations? Can a regulation adopted by a federal agency trump a law passed by a state legislature?

 

Such questions of “federal preemption” might once have been little more than interesting topics for an undergraduate constitutional law class, but during the Bush Administration, they have taken on much greater importance.  In recent years, various agencies of the federal government – with leadership from Bush appointees – have sought to use federal regulations to trump state environmental, health and safety protections that the Administration apparently regards as too costly to industry, and to undercut citizens’ right to sue under state tort laws for damages resulting from industry irresponsibility.

 

In some instances, federal agencies have simply asserted in the text of regulations that the regulations preempt state standards or citizens’ right to sue for damages under state laws.  In other cases, agencies have sought out opportunities to file legal briefs on behalf of corporations sued under state laws, arguing that citizens do not have a right to sue for damages in areas covered by the federal regulations in question. 

 

For example, on the issue of drug and medical-device labeling – a critical area because labels are required to reflect the ways that drugs and devices can be prescribed safely and legally – the Bush Administration has delivered a one-two punch. In 2006, the Food and Drug Administration inserted a last-minute provision into the preamble to a drug-labeling rule declaring that it preempts lawsuits filed under state law over inadequate warnings about the risks posed by a prescription drug – thus denying citizens’ right to sue when harmed by industry misbehavior.

 

Separately, the Bush Administration intervened in a Supreme Court case arguing that companies could not be sued under state law over FDA-approved device labels.  Significantly, the Court ruled in favor of the manufacturer, essentially accepting the Administration’s argument that the manufacturer of a balloon catheter that exploded inside a patient during a routine angioplasty procedure could not be sued under state tort law because the device had won FDA approval.

 

Other agencies have actively sought to preempt state tort laws, as well, most notably the National Highway Traffic Safety Administration, which has repeatedly asserted that its regulations preempt citizens’ right to sue under state tort law. NHTSA’s penchant for preemption is the subject The Truth About Torts:  Regulatory Preemption at the National Highway Traffic Safety Administration,  CPR's July 2008 White Paper by Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and CPR Policy Analyst Matthew Shudtz. 

 

CPR Member Scholars have written extensively on the subject of federal preemption, making the point that tort laws are a traditional and critical backstop to federal regulations. As CPR Member Scholar David Vladeck said in 2007 testimony to the Senate Judiciary Committee,

At its core, tort law serves a complementary purpose to direct government regulation. Regulation seeks to prevent injuries, weed out products that are unsafe or ineffective, and reward innovation. Tort law serves related but different functions — it compensates those injured through the fault of others, alerts the public about unforeseen hazards, and deters excessive and unwarranted risk taking.

Read what CPR Member Scholars have had to say about the federal preemption issue: