Can Obama Protect Consumers?
We’ve written many previous blogs on the issue of federal preemption and its devastating effects on consumer protection from unsafe products. Entrusting the safety of medical products and our food system to an underfunded, overwhelmed, and industry-infiltrated regulatory agency is a foolish mistake that leaves us all open to injury and illness with no recourse for compensation or justice. While we’re appreciative of FDA efforts, placing the vast duty of consumer protection into the hands of this one federal agency is absurd.
Our previous presidential administration disagreed, favoring federal preemption of the state tort system for the safeguard of big business, and leaving unsuspecting citizens to fend for themselves in the all-too-common event of foodborne illness or medical product injury. When preemption grants wayward food and drug companies’ immunity, while concurrently tying the hands of the tort system….guess who ends up on the short end of the stick?
Fortunately, times truly are changing, and the Obama administration is ushering in long overdue progress on the consumer protection front. President Obama recently issued a directive for the Heads of Executive Departments and Agencies calling for strict limitation of state law preemption. The memorandum begins by acknowledging the efficacy of state and local governmental control:
Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.
…The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.
In addition to the suppression of unwarranted preemption statements in future regulatory preambles and codified regulations, the directive also calls for the review and possible amendment of regulations issued over the past ten years that may include unjustifiable claims for preemption.
Let’s hope that this is a firm first step in the direction of recognizing the necessity of the tort system’s regulatory function in consumer protection, an issue we recently addressed in a blog post you can access here: Forbes: Tort Attorneys Recognized as Leaders in the Fight for Food Safety. The risk of liability for the sale of unsafe products is a strong motivator for food and drug companies to maintain high standards. Consumer safety depends upon the tort system, and we’re glad to see the current administration take a stand on the side of consumers.
Richard J. Arsenault, 2011
