When a state law conflicts with a federal law, the federal law wins. That, in a nutshell is the doctrine of preemption. The doctrine is based upon Article VI Section 2 of the U.S. Constitution and ensures that states can’t pass laws that undermine the goals of the United States. With respect to the civil justice system, preemption means that federal law preempts lawsuits based on state law claims, such as negligence or failure to warn.
There are two main types of preemption, express preemption and implied preemption. Express preemption occurs when a federal law expressly states that it is intended to preempt state law. Implied preemption occurs when a court decides that even though the federal law doesn’t explicitly state that it preempts state law, it nevertheless does preempt state law. There are two types of implied preemption: Conflict, and field.
Conflict preemption occurs in two circumstances. First, if it would be impossible to comply with the state law and the federal law. For example, if a state law required all widgets to be red and a federal law stated that no widget could be red, the state law would be preempted under conflict preemption. Second, if a state law interferes with the goals of a federal law. For example, a state cannot pass its own air and water regulations if they interfere with existing federal laws enforced by the EPA.
Field preemption occurs when the federal government intends its laws to completely occupy a particular field. The best example of this is the U.S. immigration policy: The federal government completely occupies the field of immigration into the U.S.
Preemption means that there will only be one set of rules or standards an industry has to follow. This makes it cheaper and easier for an industry to operate in all 50 states. For example, airline deregulation is an example of preemption. Preemption also means that juries won't make decisions that conflict with the decisions made by expert government agencies.
Preemption often means that citizens are no longer able to sue the industry, even if the industry was clearly responsible for a citizen’s injuries. Consumers don’t have the same lobbying clout that industry has with Congress, thus making it more likely that preemption will be tilted in favor of industry.
The biggest controversy over preemption is with regard to the Food and Drug Administration and prescription drugs. For many years, the FDA’s stated position was that FDA regulations do not preempt state law claims against pharmaceuticals. After President Bush took office, the FDA changed its position and now argues that individuals should not be allowed to sue pharmaceuticals over injuries caused by drugs the FDA approves.
This position is very popular with the pharmaceutical industry because it will eliminate the vast majority of lawsuits against it. For example, if preemption had been the law of the land, Merck wouldn’t have had to enter into a nearly $5 billion settlement over Vioxx.
The position is very unpopular with consumer rights advocates, who argue that the FDA has not done an adequate job of protecting the public from unsafe medications. In addition to the debate over whether the FDA should have changed its position, there is debate over whether the FDA has the legal authority to do so.
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