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Tuesday, September 11, 2007

Law - "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"

Cindy Skrzycki, who writes the weekly column, The Regulators, for the Washington Post, writes today about:

the Bush administration's increasing use of federal health and safety regulations in defense of manufacturers trying to fend off multimillion-dollar liability claims from consumers in state courts.

The fine print of a 2006 Food and Drug Administration rule on prescription labeling that preempts, or overrides, state laws is proving to be a powerful weapon in the courtroom at a time when Merck is fighting thousands of lawsuits from consumers claiming they were harmed by its painkiller Vioxx. * * *

Since 2005, federal agencies, including the Consumer Product Safety Commission, the National Highway Traffic Safety Administration and the Department of Homeland Security, have issued more than a dozen rules that stress the primacy of federal law. * * *

The Senate Judiciary Committee has scheduled a hearing for tomorrow: "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"

"If Congress does not act, the Bush administration's escalating use of stealth preemption will deprive consumers of their right to hold negligent corporations accountable for injuries caused by defective products while these same corporations continue to increase their bottom line," said Gerie Voss, regulatory counsel for the American Association for Justice, a trade group in Washington that represents 52,000 trial lawyers. * * *

"The authority for preemption is constitutionally derived," said Sean Kevelighan, an OMB spokesman. "Decisions about whether federal and state laws conflict, and whether particular rules should preempt state laws, are made on a case-by-case basis by agencies consistent with their missions and relevant facts."

The trend started in 2002 when the FDA began filing briefs and statements in drug and medical-device cases asserting that the agency prevails when there is a conflict over a rule.

Since then, the agency has issued numerous rules that preempt state law, including the one last year on drug labeling. An Aug. 27 proposal concerning labeling for sunscreen says it would have "a preemptive effect on state law."

This is not, of course, the first time ILB readers have heard of these preemption controversies. See, for example, this ILB entry from Nov. 25, 2006, and this one from Feb. 19, 2006, headed "Federal agencies try to limit suits in state courts."

Posted by Marcia Oddi on September 11, 2007 06:49 AM
Posted to General Law Related