Monday, November 10, 2008
National Law Journal Op-ed on Preemption
The National Law Journal has published a very good op-ed piece on the issue of preemption, available here. Here is an excerpt: Earlier this year, in Riegel v. Medtronic, the U.S. Supreme Court held that the 1976 Medical Device Amendments to the Food, Drug, and Cosmetic Act pre-empt injured consumers' rights and immunize medical device manufacturers from liability. Now, in Altria v. Good and Wyeth v. Levine, the court will decide whether to expand federal pre-emption and grant tobacco and drug companies immunity by judicial fiat, too. If it does, it will be making the same fatal mistake it made in Riegel — ignoring Congress' intent. . . . . Finding pre-emption eliminates the protection consumers had before Congress acted and the incentives for product safety that the risk and cost of liabiltiy create. That's the mistake the court made in Riegel, which gives the manufacturers a license to kill. If the court compounds it in Altria and Wyeth, more consumers will die. Ignoring Congress' intent in these cases is truly a fatal mistake.