Consumer Law

Public Citizen wins a big preemption decision

By Stephen Gardner

Since no one at Public Citizen has posted a comment about the big win yesterday (August 19,2008, for those reading this post from far in the future) in the Third Circuit, I'll do so myself.

Brian Wolfman and Adina Rosenbaum at Public Citizen, working with private lawyer Khalid Elhassan, won an important preemption victory in the Third Circuit, in a class action where the defendant claimed preemption by the FDA's decision not to regulate.

Increasingly, given the brazen pleasuring of big businesses that is the second highest priority of the Bush Administration (and I?ll let y?all decide on the tip-top highest priority), companies have urged courts to find implicit preemption in the FDA?s complete and utter complicity of silence in failing to discharge its legal duties to the consuming public.

It worked in the district court, but the Third Circuit roundly rejected this theory.

Makes sense?it?s might hard for a vacuum to occupy any field!

It is a sad fact that this argument gets any traction at all.

After all, inaction by the FDA should not be surprising, given that it has its hands full in failing to protect us all from food-borne illnesses.

The full opinion is worth a read.

If that's too much trouble, you can read a good story about it in The Legal Intelligencer.

And, if that's too much trouble, go take a nap. You will have to ask the FDA officials to move to another corner of the bed, but if you say that you are with a big company, they will scoot across like little puppies.

Full post as published by CL&P Blog on August 20, 2008 (boomark / email).