An increasingly popular tactic of tort reformers is to seek protection from federal preemption. Regulators, backed by tort reform groups, continue to propose and institute measures that seek to preempt state laws and eliminate the rights of those injured. For example, the Food and Drug Administration proposed last year that their regulations should preempt state causes of action; in essence, if the food or drug was approved by them, it would be virtually impossible to sue the manufacturer for any defects in the product. Similar “regulatory preemption” measures have also been advanced with respect to autos, banking, railroads, and medical devices. And just yesterday, the California Supreme Court decided that federal law pre-empted a state court claim against tobacco companies.
However, it’s increasingly obvious that the federal government doesn’t have the resources necessary to completely protect the public. For example, in the wake of this week’s recall and investigation of Mattel’s toys that were made in China with lead paint, the Consumer Product Safety Commission is admitting that it doesn’t have the funds necessary adequately protect the public. But the CPSC isn’t the only problem. In April, the Food and Drug Administration announced stepped up inspections of food imported from China. But those stepped up inspections weren’t enough to stop tainted food from coming to the US, as the US eventually had to outright ban several foods from China. These problems with China have led some to describe it as the Wild West.
So today, federal preemption makes little sense. At a time when it’s obvious that federal regulators aren’t able to properly do their job, products should be subject to more scrutiny, not less.
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