Is the Preemption Party About Over?

Posted on October 20, 2008 04:02 by J. David Prince

On the first Monday of October, at 9:00 a.m. in the courtroom of the United States Supreme Court, the court heard arguments in Altria Group v. Good, No. 07-562.  The issue in this first case argued in the new term is whether a suit brought by a group of three smokers alleging false advertising claims with respect to “light” cigarettes is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331, et seq.  The Court of Appeals for the 1st Circuit ruled last summer that the suit was not preempted, Good v. Altria Group, 501 F.3d 29 (1st Cir. 2007).  However, a review of the transcript of the arguments indicates to me that the majority of the justices will agree that the plaintiff’s claims are preempted by federal law [View Transcript].  If that proves true, the result will be yet another defense victory founded upon the preemption doctrine, a doctrine that defendants have used with great success over the last several years.  But is the trend toward preemption about to change, making life a little harder for product liability defense lawyers?

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Comments

10/31/2008 3:19:07 AM #

I think most of the analysis is right on the money, but you've got to keep the difference between express and implied preemption in mind.  It's easy enough for a new Congress to amend a statute to eliminate express preemption.  It's a lot harder to eliminate implied preemption - if the Supreme Court locks it in in Levine.  Congress would have to eliminate the conflict itself, which would require it to increase the substantive powers of the state at the expense of the relevant federal agency whose actions create the conflict.  It would take a much greater investment of political capital to, say, gut the FDA's authority over drug warnings, than just to insert a savings clause into a statute or eliminate a preemption clause.

James Beck United States

11/3/2008 1:07:31 AM #

Linguistically, I would prefer preemption not be termed a 'party' in the title of this post.  It is a very serious flaw in your legal system for those harmed by others who are allowed to escape responsibility.

Your blog is in fact very informing,

Dan Abshear

Dan United States

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