The Checkout

Preemption: Not a Blunderbuss

Annys Shin

Yes, a posting not related to the financial crisis!

However, it is about preemption, that most important, but possibly dullest of all product safety issues.

Preemption refers to having federal regulations trump state ones, including stronger state ones.

The trial lawyers issued a report Wednesday on what it describes as the Bush Administration's systematic attempts to impose preemption on the world through executive fiat, either by filing amicus briefs on behalf of drug companies fighting product liability suits, or by inserting preemption language into numerous federal regulations by including it in the preamble. One example is the National Highway Transportation Safety Administration's roof crush rule.

The trial lawyers report is based on documents obtained under the Freedom of Information Act. The documents they got, including e-mail exchanges from officials with the Office of Management and Budget, didn't strike me as any sort of smoking guns. (We'll get to blunderbusses in a second.) Perhaps more illuminating were public comments made by a former political appointee at FDA. He said inserting the preemption language in the preamble was "not a blunderbuss" and "more of a rifle shot."

The courts haven't ruled conclusively in favor of the position that preemption language when stuck onto regulations, carry the force of law. But consumer advocates view adding preemption to the preamble of regs as another tactic by pro-business forces to fight tougher state regulations.

You can see the report for yourself here. In the meantime, watch where you point those blunderbusses.

By Annys Shin |  October 16, 2008; 7:04 AM ET Annys Shin
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Thank-you for your well written explanation of Preemption. As a member of a grass roots, non partisan group of concerned citizens – ADDA – Americans for Drug and Device Accountability I commend your efforts.

Our only hope in turning this around is to raise this issue to the point that a majority of Americans can define what preemption is. Currently if you ask many Americans how to define preemption they wouldn’t be able to tell you what it means or how it might affect them.

I wrote to my Senator from Illinois, Mr. Obama. I asked him how he stood on preemption. His response was non committal which I found curious until at the last debate we learned that he too supports torte reform.

Ultimately the root of this issue is not so much political as it is an effort by some industries to shake their responsibility to provide safe products and services to the public in favor of increased profit. Purchasing political favor is just a means to this end. Whoever is in office will be subject to the temptation to take industry money and many will succumb to the sin by listening to well worded pleas and monetary support.

Then the issue of torte reform carries with it the stigma of the “frivolous law suite”. This conjures up the picture of suing McDonalds over spilled coffee. Most Americans are vehemently apposed to this sort of cheating and most preemption supporters contend that this is what we are supporting.

So the barriers to garnering the force of the American public are difficult to overcome mainly because they are so esoteric. Unfortunately until the word preemption appears on the front page of the Washington Post or the Wall Street Journal too many people will not know what it means or how it could affect them.

Posted by: Anonymous | October 18, 2008 10:31 AM

Preemption is not a bad thing. Imagine you're a small (or mid-sized...or heck, big) toothpaste maker in Maine, and you have to figure out what the requirements are in 50 states or what one federal requirement is. Which is easier, and better for businesses? The key is to ensure a level playing field, not to instill protectionist practices.

Posted by: Byte 1 | October 21, 2008 10:56 AM

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