Call Us: 1.800.873.5297


Federal Preemption of State Claims Could be Coming to an End

On Wednesday, May 20, 2009, President Barak Obama issued a memorandum calling for the rollback of federal preemption of many state law claims. The memo says that federal agencies should only claim that the state law is preempted when there is a valid basis for doing so. While the memorandum did not name any specific industries to be affected by this rollback, many consumer products may be affected.

Preemption generally refers to the displacing effect that federal law will have on state law. This occurs because the Supremacy Clause of the Constitution states that federal law is the supreme law of the land. Therefore, when federal and state laws clash, federal law will take over. Preemption can occur through implied preemption, where it is impossible to comply with both state and federal law or if the state law impedes the achievement of federal objective. Preemption can also occur through express preemption, where agencies and statues will specifically state that they are preempting state law. It was this type of preemption that proliferated under Bush. During the Bush administration, many companies were complaining that they had 50 different state laws to deal with. The Bush administration then spearheaded the issue, encouraging federal agencies to declare rules that stated that state laws were preempted and to make one, uniform federal rule. Bush officials stated that having state consumer safety laws allowed for plaintiffs to get around prohibitions on product liability suits. During the 2008 election, the tort bar discussed with Obama its desire to push back Bush-era regulations.

Even before President Obama’s memo, the tide had already begun to turn on sweeping federal preemption of state law. In March, the U.S. Supreme Court stuck down preemption involving the FDA’s regulation of drugs. In Wyeth v. Levine, a drug manufacturer was sued under state law when one of the manufacturer’s drugs, phenergan, caused a person to develop gangrene. The manufacturer claimed that the FDA’s rule on drug labeling preempted state law. The Supreme Court disagreed. The Supreme Court stated that the FDA supplied the floor for drug labeling requirements and that the drug company would have to comply with all state law labeling requirements as well. Lawsuits against medical device manufacturers are still preempted by state law, but there have been proposals to push legislation that would allow those suits as well.

For more information, see the Wall Street Journal article at:

000-017   000-080   000-089   000-104   000-105   000-106   070-461   100-101   100-105  , 100-105  , 101   101-400   102-400   1V0-601   1Y0-201   1Z0-051   1Z0-060   1Z0-061   1Z0-144   1z0-434   1Z0-803   1Z0-804   1z0-808   200-101   200-120   200-125  , 200-125  , 200-310   200-355   210-060   210-065   210-260   220-801   220-802   220-901   220-902   2V0-620   2V0-621   2V0-621D   300-070   300-075   300-101   300-115   300-135   3002   300-206   300-208   300-209   300-320   350-001   350-018   350-029   350-030   350-050   350-060   350-080   352-001   400-051   400-101   400-201   500-260   640-692   640-911   640-916   642-732   642-999   700-501   70-177   70-178   70-243   70-246   70-270   70-346   70-347   70-410   70-411   70-412   70-413   70-417   70-461   70-462   70-463   70-480   70-483   70-486   70-487   70-488   70-532   70-533   70-534   70-980   74-678   810-403   9A0-385   9L0-012   9L0-066   ADM-201   AWS-SYSOPS   C_TFIN52_66   c2010-652   c2010-657   CAP   CAS-002   CCA-500   CISM   CISSP   CRISC   EX200   EX300   HP0-S42   ICBB   ICGB   ITILFND   JK0-022   JN0-102   JN0-360   LX0-103   LX0-104   M70-101   MB2-704   MB2-707   MB5-705   MB6-703   N10-006   NS0-157   NSE4   OG0-091   OG0-093   PEGACPBA71V1   PMP   PR000041   SSCP   SY0-401   VCP550  

Legal Disclaimer & Privacy Policy
This web site is designed for general information only. The information presented should not be construed as legal advice and does not form the basis for an attorney/client relationship.

The choice of a lawyer is an important decision and should not be based solely on advertisements.
This web site is not intended to be advertising, and Schlichter Bogard & Denton LLP does not desire to represent anyone desiring representation based upon viewing this web site in a jurisdiction where this web site fails to comply with all laws and ethical rules of that jurisdiction. Materials on this web site may only be reproduced in their entirety (without modification) for the individual reader's personal and/or educational use and must include this notice.

We will not disclose, sell, or rent any of your identifiable personal information to any third party, unless approved by you, or required by law.