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States Barred from Protecting Consumers Hurt by Faulty Medical Devices, Says Supreme Court

In one more example of lax federal agencies being empowered to block tougher state protection of consumers, the Supreme Court ruled yesterday that states are barred from protecting consumers from faulty medical devices, such as breast implants, if the Federal Food and Drug Administration (FDA) has already approved those devices.

These means that a federal agency like the FDA, politicized by a right-wing President and dominated by industry-funded advisors, can unilaterally override laws in all fifty states that hold companies liable for harm to consumers.  This, despite the fact that, as the New York Times described:

The Institute of Medicine, the Government Accountability Office and the FDA's own science board have all issued reports concluding that poor management and scientific inadequacies have made the agency incapable of protecting the country against unsafe drugs, medical devices and food.

Subverting Pro-Consumer Laws: Because it is impossible for any agency to find all problems with products during the approval process, states have long held medical device makers liable for harm to consumers. However, in 2004, the Bush Administration retroactively reinterpreted the 1976 Medical Device Amendments law to preempt state damages against devices approved by the FDA. But as the sole Senate sponsor of that 1976 law, Sen. Edward Kennedy condemned that interpretation of a law meant to protect the public, not protect industry:

In enacting legislation on medical devices, Congress never intended that FDA approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices. Congress obviously needs to correct the court's decision. Otherwise, FDA approval will become a green light for shoddy practices by manufacturers.

A Dangerous Trend: We are seeing a cascade of federal agency decisions, backed by federal courts, that are gutting state law protections for consumers and workers. As we described last year, the sub-prime mortgage meltdown might have been averted if courts had not allowed a federal banking agency to preempt state laws that sought to rein in predatory lending practices in the home mortgage industry. This is part of a dangerous trend of industry using federal preemption to limit state government regulation of corporate abuses. It also illustrates the hypocrisy of a conservative ideology that claims to represent limits on federal power, but readily abuses that federal power to sacrifice the rights of consumers and workers for the sake of monied interests.

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