Tort Reform By Preemption

There is an interesting dichotomy about the importance of public safety.  This month, the Center for Progressive Reform released a white paper, The Truth About Torts: Using Agency Preemption To Undercut Consumer Health and Safety, discussing the Bush administration’s continued use of preemption as a tort reform measure.  The paper, written in part by law professors William Funk (Lewis & Clark), Sidney Shapiro (Wake Forest), and David Vladeck (Georgetown), describes the preemption phenomenon being pursued by the Bush Administration:

Although executive-branch support of industry’s claims of preemption of tort actions is not unprecedented, the systematic nature of this administration’s backing of industry tort-preemption claims—involving multiple agencies charged with implementing health and safety protections—substantially exceeds anything done in prior administrations. Prior to the Bush administration, agencies by and large took one of two positions. They either opposed preemption of state tort remedies or stayed on the sidelines and did not take a position. The Bush administration’s support for preemption of state tort law has appeared in two forms. One form has been to intervene on the side of industry in tort litigation by the filing of amicus briefs arguing that the plaintiff ’s claims against the corporate defendant are preempted by the agency’s regulations or its general authority over the health or safety matters at issue. For example, the Environmental Protection Agency (EPA) filed a brief in support of Dow’s assertion of preemption in Bates, reversing the position that the agency had taken a mere five years earlier in an amicus brief filed with the California Supreme Court. The other form of administration support for preemption began not long after the Court handed down its decision in Bates rejecting Dow’s and the administration’s preemption arguments. After Bates, the administration began taking the more aggressive approach of declaring in rulemaking preambles that state tort law is preempted by the regulation that the agency is issuing or proposing.

According to the authors, the Food and Drug Administration is a perfect example of both forms of attack.  The FDA now routinely files amicus briefs in pharmaceutical litigation to aid claims that state tort law is preempted by federal regulations, which, according to one authority, is a “dramatic change [from] what FDA has done in the past.”  But the FDA hasn’t stopped there.  The FDA has also started adding in the preamble to various rules that it intends for the rules to preempt state tort liability.  A notable example is FDA rules concerning the content and form of drug labeling.  The FDA argues that as long as pharma companies comply with its rules, then the companies shouldn’t be subject to state tort liability no matter how bad the warnings provided are.

So what’s the problem?  The general supposition behind any push for preemption is that the federal oversight is enough to protect Americans.   The idiocy of such a supposition is also on display this week as Congressional hearings start investigating toy safety.  A major focus of the hearings will be how the Consumer Products Safety Commission (which also advocates for preemption) could do such a poor job in protecting our kids.   (The Consumerist has a humorous liveblog of some of the hearings.  Thanks to Bill Childs for the link.)

It is clear now, more than ever, that the federal government has neither the will, nor the resources, to protect the public from those that are unscrupulous.  If preemption continues, and state government and personal injury suits are not allowed to help regulate industry, then product safety will become a bigger and bigger problem.

Click here for a prior post on the use of federal preemption as a method of tort reform.

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