Consumer Law

Obama Administration Reverses Bush Administration Policy on Regulatory Preemption

By Brian Wolfman

The Obama administration last Wednesday reversed the Bush policy on federal preemption of state law, particularly product liability law. The Obama administration's memorandum announcing the new policy does three things:

First, it states that agencies should not include in regulatory preambles statements that the agency intends to preempt state law through the regulation, except where preemption provisions are also included in the codified regulation. This memorandum reverses the Bush administration?s effort to use regulatory preambles to preempt 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, it says that agencies should not include preemption 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 before preemption may occur, it is unlikely that agencies in the Obama administration will be seeking to preempt state product liability law by regulation or regulatory preamble. 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.