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Industry Looks to Federal Rules to Preempt State Regulation

Suddenly, the news is filled with stories about industry lobbyists marching up to Capitol Hill in Washington, D.C., asking to have their industries regulated:

For toys and cars, antifreeze and fireworks, popcorn and produce and cigarettes and light bulbs, among other products, industry groups or major manufacturers are calling for federal health, safety and environmental mandates. Some of those industries are abandoning years of efforts to block such measures, often in alliance with the Bush administration...

What gives?

With toxic toys forcing industry recalls and other threats to public health stirring demands for government action, industry is looking to contain the potential restrictions on their lax practices. States have been taking action to crack down on a range of these public health dangers, so industry is looking to federal rules to water down state regulatory standards and block these state laws.

Increasing Preemption of State Laws: This is nothing new. As a Congressional report last year detailed, the House and Senate voted 57 times in the previous five years to preempt state laws, including legislation to preempt state limits on air pollution, legislation to preempt state regulation of contaminated food, and regulation to block tougher state regulation of Internet "spam." 

Even without new federal laws, industries have used executive branch regulations to strike down state consumer protections. As we detailed in March, the effects of such federal preemption can be profound. As predatory lending expanded across the country, states sought to enact laws to limit such abusive mortgage practices, only to see many of those laws blocked by federal courts based on Bush administration claims that such state laws were preempted by federal law.

Congressional Hearings on Preemption: Some federal legislators recognize the problem and the Senate Judiciary Committee this week held hearings on how federal agencies are dangerously extending preemption doctrine against state laws. As Georgetown law professor David C. Vladeck testified:

Reversing a position held by the agency since its founding, the FDA has recently announced that its approval of a drug’s label immunizes the manufacturer from failure-to-warn claims...

The National Highway Traffic Safety Administration now routinely claims that its regulatory actions preempt state law ”” both state statutory and regulatory law and state damages actions...

The Consumer Product Safety Commission (CPSC) has also joined the Administration’s drive for preemption of state law remedies for injured consumers...

As this list makes clear, this Administration has seized on regulatory preemption as a way to cut back dramatically on State law remedies for those injured by products and services Americans depend on every day for their health and well-being ”” medicines, medical devices, motor vehicles, the mattresses on which we and our children sleep, and the commuter trains millions of us take to work every day.

Hypocrisy of "States' Rights" Conservativism: As we detail below, many in Congress are trying to reverse the Bush administration's decision to block state programs that extend SCHIP health coverage to more working families. Unsurprisingly, industry lobbies like the National Association of Manufacturers want to pretend that right-wing rhetoric around "states' rights" and this Bush administration assault on state laws is somehow consistent.  

But luckily, many state and federal leaders are increasingly demanding that federal laws be designed to create a baseline of consumer protections, while leaving states free to enhance those standards locally and deal with the problems left unaddressed by those federal laws.

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