Thursday, February 07, 2008, 4:19 PM

Regulatory Preemption And The Supreme Court

There was an interesting article (State, Federal Powers Collide) in the Wall Street Journal last week about federal agencies enacting new rules that preempt state law. The article explained: "These new initiatives, largely applauded by business interests, affect products including drugs, autos and passenger railcars." Generally speaking, companies prefer a single federal standard to a "patchwork" of differing state guidelines. Additionally, federal preemption can be a defense against state law tort claims.

The article references the following federal agency actions:

--An effort by the EPA to block California and other states from regulating carbon-dioxide emissions.

--A decision by the Consumer Product Safety Commission that its rules on mattress flammability preempt state laws.

--A rule by the FDA regarding warning labels on drugs.

--A Federal Railroad Administration rule that would strengthen safety standards for commuter trains and includes language that preempts efforts by states.

The article failed to mention the preemption issue surrounding the federal Do-Not-Call registry, which I wrote about here.

The article also notes that "the[se] regulatory moves may be trumped by the Supreme Court, which is set to rule on a series of cases related to preemption in the next year or two."

Presumably, the article is referring to Reigel v. Medtronic, Wyeth v. Levine, and Phillip Morris v. Good. The Supreme Court heard oral argument in Reigel on December 4, 2007. This issue is whether the Medical Devices Act preempts state tort claims involving PMA devices. In Wyeth, the Supreme Court is reviewing a Vermont Supreme Court decision involving preemption of state law failure-to-warn claims for prescription drugs. And Phillip Morris involves the interaction of federal and state laws governing the labeling and advertising of cigarettes.

Over the last several years, the Supreme Court heard and decided many important antitrust cases (which were discussed and followed on this blog). Perhaps this will be a big year for preemption jurisprudence.

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