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May 21, 2009 

Obama Memorandum on Pre-Emption Is Good for Consumers, Will Bolster System Designed to Ensure Product Safety

Statement of David Arkush, Director, Public Citizen’s Congress Watch Division

We are pleased and gratified that the Obama administration on Wednesday reversed the disastrous Bush policies on federal pre-emption of state law, particularly product liability law. Consumer safety is strongest when we have strong government regulations and, at the same time,  citizens can turn to courts when they are harmed by dangerous products.

First, President Obama’s memorandum outlining his changes says that agencies should not state in regulatory preambles that the department or agency intends to pre-empt state law through regulation, except where pre-emption provisions are also included in the codified regulation. This memorandum reverses the Bush administration’s effort to use regulatory preambles to pre-empt state product liability law, as it attempted to do with respect to lawsuits concerning mislabeled or defective prescription drugs. (The U.S. Supreme Court emphatically rejected that effort in Wyeth v. Levine.)

Second, the memorandum says that agencies should not include pre-emption provisions even in codified regulations “unless justified under legal principles governing preemption.” Because the law  generally demands a direct conflict between state and federal law, we expect this to occur only in limited circumstances. As the Supreme Court has noted, most recently in Wyeth v. Levine, state product liability law often complements, rather than conflicts with, federal laws seeking to assure product safety.

Third, and perhaps most important, the memorandum instructs agencies to reconsider all regulation or regulatory preambles issued in the past 10 years that include pre-emption preambles and to amend or eliminate those regulations or preambles where appropriate. This statement sends a strong signal that the Obama administration has serious concerns with the Bush administration’s efforts to impose pre-emption where it did not belong.

In December 23, 2008, and January 13, 2009, letters to transition team members and incoming officials of the Office of Management and Budget, Public Citizen and other groups urged the incoming administration to take steps along these lines and, again, we are pleased with the administration actions. Consumers win when we have a both a strong regulatory system and a strong civil justice system, serving the complementary goals of safety and compensation for those harmed by defective products.

READ our January 13, 2009 letter.


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