Public Citizen believes that tort law is rightly a matter of state, not federal, concern and that, absent an express congressional determination to the contrary, states should remain free to compensate tort plaintiffs as they deem appropriate. With this principle in mind, our Litigation Group, since the early 1990s, has been a leader in fighting against the argument that federal regulation bars, or "preempts," state-law claims seeking damages for injuries caused by consumer products. Although defendants most frequently assert the preemption defense in product liability and deceptive marketing practices cases, it is also raised in other areas, such as employment cases. 

Cases on Preemption

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Articles on Preemption


Wyeth v. Levine and Its Implications (May 2009) Copyright The Bureau of National Affairs, Inc.

Former Public Citizen Litigation Group Director Brian Wolfman has written an article on the Supreme Court's decision in Wyeth v. Levine, which held that FDA approval of a prescription drug and its labeling does not preempt a state-law suit seeking damages based on injuries caused by the failure of the drug's manufacturer to warn about the drug's dangers.

US Supreme Court Case: A Victory for Patients. (April 2008) Copyright Informa UK Ltd 2008.

Litigation Group Director Allison Zieve discusses the implications for patients of the Supreme Court's decision in Warner-Lambert v Kent.

Supreme Court Decision May be Hazardous to Patients. (March/April 2008) Copyright Informa UK Ltd 2008.

In February 2008, the Supreme Court held that the law that provides authority for the FDA to regulate devices also severely limits the right of injured patients to sue device manufacturers. In this article, Litigation Group Director Allison Zieve explains why this decision creates a hazardous hole in the US system for protecting public health.

Why Preemption Proponents Are Wrong. (March 2007) Posted with permission of TRIAL. Copyright American Association for Justice.

In this article, former Litigation Group Director Brian Wolfman provides insights into defeating preemption defenses and explains that, in fact, protection of the public is maximized when court remedies are allowed to work alongside federal regulation.

The FDA's Argument for Eradicating State Tort Law: Why It Is Wrong and Warrants No Deference (March 27, 2006) Posted with permission of the Bureau of National Affairs.

In January 2006, in a notice announcing the issuance of new drug labeling regulations, the Food and Drug Administration stated that FDA approval of a new drug preempts a range of product liability claims brought by patients injured by prescription drugs. In this article, attorneys Allison M. Zieve and Brian Wolfman explain why the FDA's preemption position is bad law, bad policy, and warrants no deference from the courts.

Product Safety and Liability (September 26, 2005) Copyright Bureau of National Affairs, Inc.

In this analysis, law student Daniel Mosteller and former Litigation Group attorney Brian Wolfman discuss the background of the Bates decision and predict its effects, in light of the lower courts' recent tendency to rule in favor of defendants in tort preemption cases.

Learn More About Preserving State Consumer Laws

More Resources on Preserving State Consumer Laws