TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, February 17, 2006

On Agencies Declaring Their Actions to Preempt State Law

(Via WSJ Law blog)

The Post notes what I've noted before -- a trend of federal agencies asserting that their rules preempt state tort lawsuits.  Both the WSJ blog and the Post assume something that's not self-evident to me -- that the agency's views on the preemptive power of their rules mean anything.

The Bush administration is using federal rulemaking to limit consumer rights to seek damages under state laws governing faulty products.

The Consumer Product Safety Commission will vote today on a rule that would restrict such suits in the case of mattresses that catch fire, the most recent rule changes undertaken by several agencies. Last month, the Food and Drug Administration limited consumers' ability to recover damages for injuries from agency-approved drugs.
Meanwhile, the National Highway Traffic and Safety Administration is seeking to give automakers similar legal immunity from lawsuits over defective roofs if their vehicles meet new roof-crush standards. It is also proposing to limit consumer lawsuits in a rule that would address seat-belt requirements.

I assume that courts are interested in hearing from the agencies in question (or at least willing to listen), just as they're interested in other amici (or at least willing to listen).  Indeed, I'd guess the courts are more interested in the agencies' views than, say, mine.

But the question of implied preemption by Congress is a question for the courts -- and the agency saying so can't make it express preemption.

Or can it?  Am I missing something?  Comments are, as always, open.

Update: The CPSC yesterday approved new mattress guidelines and declared that the guidelines would have preemptive effect.  As with the FDA, the declaration was in the preamble.

Also, PrawfsBlawg has more.


(Prior posts on preemption by regulation: first, second, third.)

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» Safety standards and federal pre-emption from PointOfLaw Forum
Now it's the Consumer Product Safety Commission getting into the act (via Lattman, Childs). See our coverage of pre-emption initiatives at NHTSA and the FDA.... [Read More]

Tracked on Feb 17, 2006 6:36:25 AM


If it's a formal rule through the notice-and-comment procedure, then it is (or, rather, should be) subject to the standard two-part test for the applicability of Chevron deference, though the practical import may be somewhat less because of the difficulty of getting forum-shopped state courts to fairly weigh the federal interest. (That's not to say that some of these rulemakings won't flunk even the Chevron test.) If it's something like the preamble in the FDA rules, then it has the same legal effect as an amicus brief, entitled to Skidmore deference, though the practical import may be a smidge greater. But one can hardly expect the Washington Post to be completely up on the nuances of administrative law.

Posted by: Ted | Feb 16, 2006 10:40:33 AM

Good point -- I was focusing on the preamble language sort of statements. If it goes through the full procedure, it may be a different story -- but I seriously doubt that it has a different ending, as you suggest.

If they really are doing this through notice-and-comment (and I'm not certain if they are -- clearly they're not in the FDA context), doesn't that seem like an odd thing to do? It's certainly not a regulation in the classic sense of the word, nor is it really a description of how the regulation should be implemented. It's a statement about the proper effect of that regulation in a different area of law. And that statement seems more properly in the realm of amicus briefs and preambles.

Posted by: Bill Childs | Feb 16, 2006 11:00:09 AM

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