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Wednesday, August 20, 2008


Steve Gardner

My default position is against preemption in any guise, but this was developed pragmatically when I was an assistant AG in the 80's and saw the federal consumer protection agencies doing nothing to help consumers. Under the Bush Administration, agencies like the FDA have turned federalism on its head but stepping into the fray to protect businesses against pesky consumers. This is wrong.

But I also grant that there are times when preemption is appropriate, such as when complying with a state law will force a violation of a federal law. And I'll grudgingly concede that it might sometimes be best to have a single national standard of regulation, although I can't conceive an instance where the national standard should be laissez faire.

As to bad law, I'm not clear what Mr. Greenspan is getting at--in this case (contrasted, at least arguably to Colaccico) the federal approach was essentially to let companies do what they wanted, but put out a brochure that told the lucky few consumers that maybe the companies were doing things that would hurt them. Distinguishing Colaccico appears jurisprudentially and socially sound.

So, good law, I think.

Henry Greenspan

Much as I hate to admit it (I've been fighting FDA preemption for a long time), the guys over at the Drug and Device Law Blog analyze this decision pretty closely and in a way that actually _supports_ preemption in the drug arena. This is because the judge in this case used the Colacicco decision as a contrasting instance in which preemption, in his view, _should_ prevail.

So good for PC. But we are left with the possibility that bad fish sometimes leads to bad law.

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