The Legal Examiner Mark The Legal Examiner Mark The Legal Examiner Mark search twitter facebook feed linkedin instagram google-plus avvo phone envelope checkmark mail-reply spinner error close
Skip to main content

For a long time here at the Injuryboard, many of us have looked at the issues surrounding preemption. Basically, the use of the federal government to override state laws. The Bush administration made it a practice to change administrative rules to preempt consumer protection laws of individual states.

Earlier this year, the Supreme Court gave the consumer significant relief by ruling that the laws of Vermont weren’t preempted in the pharmaceutical lawsuit of Wyeth v. Levine . The same issue is being addressed by congress concerning product liability.

This past week, President Obama gave the consumer another lift with the following statement:

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… As Justice Brandeis explained more than 70 years ago, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

This is a clear sign that states are free to protect their citizens as they see fit.


  1. Gravatar for gerry mcgill

    Great post and a great statement by our President. Premption by non-elected bureaucrats is a form of tyranny which should be done away with. The same for mandatory arbitration clauses in consumer contracts.

  2. Gravatar for JILL PAUL RN

    Mike, thanks for a great post and bringing us up to date on pre-emption. How insenstive Bryan Quigley's remark was when he said,"Allowing for more lawsuits will not create more jobs, except many for plaintiff's lawyers." Apparently those innocent victims who have been harmed by faulty medical devices, are not even to be considered. I am sure there are many medical corporations jumping up and down in a screaming fit over lawsuits. After all, they have been protected since 1976. It is time they considered the repercussions when they rush to market only to increase their bottom line with faulty medical devices. Thank you President Obama - this is a true beginning. It is vital that the Medical Device Safety Act S540/HR1346 be passed - now, and not 2 years hence.

    If you or a loved one have been injured by a faulty medical device, please sign and post comments to an ongoing petition to support the MDSA. This can be found at:

    We need to stand together to get this very important piece of legislature passed in Congress and the Senate to protect innocent victims of faulty medical devices. Thank you.

  3. Gravatar for Daniel 8791

    I certainly have to agree with the other posters that this is indeed really great news. President Obama should feel proud for the actions he has taken regarding this preservation of liberty. Excellent article Mike.

  4. Gravatar for Mike Bryant

    Thanks for the kind words and the rally cry for passage of the Medical Device Safety act. Thanks also for taking the time to read and comment.

Comments are closed.

Of Interest