Center for Progressive Reform

The Preemption Power Grab

What Congress and the President Should Do to Protect Consumer Access to Court

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, those assumptions are valid.  But the regulatory system is now frayed to the point that dangerous products too often slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on state courts as a venue for injured people to seek justice.

Over the years, product manufacturers have worked hard to deny injured consumers access to the courts.  Complaining of “excessive” damage awards and “unpredictable” legal terrain, manufacturers have argued that federal regulatory actions preempt injured consumers’ lawsuits in cases of negligence, defective design, or their own failure to warn customers of potential hazards. During the Bush Administration, in an unprecedented policy shift, a number of federal regulatory agencies joined manufacturers' view on preemption.

The preemption argument is based on the Constitution’s Supremacy Clause, under which Congress has the power to invalidate, or “preempt,” state law through federal legislation. Industry lawyers have misappropriated that limited legal doctrine, asserting that manufacturer compliance with federal regulatory standards should absolve them from having to prove that their products are safe or their warnings are adequate.

CPR Member Scholars argue that protective regulatory action should not be used to shield manufacturers from accountability for unsafe products.  That, of course, is precisely what the regulatory preemption doctrine does: denying legitimate victims of unsafe products the right to take manufacturers to court.

In The Truth about Torts: Rethinking Regulatory Preemption and its Impact on Public Health, CPR Member Scholars William Buzbee, William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and Policy Analyst Matthew Shudtz argue that regulatory preemption should not be used as a tool for limiting corporate liability, and then examine the preemption push as an issue of federalism. Especially in the context of public health and safety, the Scholars argue, all levels of government have a legitimate interest in determining the ideal level of protective regulation.

The Member Scholars present a number of recommendations for both the legislative and executive branches:

  • Congress should reclaim its primary role in setting federal preemption policy by more clearly describing agencies’ power to define the preemptive effect of their regulatory actions and by establishing new regulatory mechanisms to promote accountability.
  • Congress should consider amending a number of existing statutes to insert specific language making clear that the laws do not preempt state tort laws. Among the statutes where such clarity is particularly needed: the Medical Device Amendments, the Consumer Product Safety Act, and the National Traffic and Motor Vehicle Safety Act.
  • The President should develop a new Federalism Executive Order articulating an overarching philosophy on preemption. The President should then set up mechanisms to ensure that all agencies adhere to that philosophy. The Executive Order should recognize the important role that state law plays in protecting consumers from harm.

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© Center for Progressive Reform, 2013