As I noted in Part I, The American Association for Justice (AAJ) recently released a report documenting the erosion to states’ rights that has occurred over the course of the last eight years, as a direct result of efforts by the Bush administration to give unprecedented (the AAJ says “unconstitutional”) power to regulatory agencies—and by extension, to the corporations under their increasingly lax jurisdiction—through the language of complete immunity preemption.
Corporate America has been quietly pushing complete immunity preemption as its preferred solution to litigation that might also fall under regulatory realms. Complete immunity preemption leaves individuals with no restitution for injuries caused by irresponsible corporations…In the past few years, carbon copy statements claiming that federal agency rules preempt state law have begun surfacing in the preambles of rules issued by the federal government. These federal rules mark an unprecedented attempt to allow corporations to escape accountability when they knowingly market unsafe products. They are unconstitutional, often in direct contradiction to their own prior agency policies, are not voted on by any Member of Congress, and in some cases not even subject to a period for public comment. As a result, states have had their authority curtailed and liabilities imposed upon them by unelected federal regulators. –Get Out of Jail Free: How the Bush Administration Helps Corporations Escape Accountability.
The AAJ report goes on to list every final as well as every proposed piece of new preemption legislation in seven different regulatory agencies. The final legislation includes:
January 13, 2005- For the first time in agency history,
in the preamble to a new proposed rule regarding mattress
flammability standards, the Consumer Product
Safety Commission (CPSC) states that the rule preempts
state tort law. Democratic CPSC Commissioner Thomas
Moore issues a strong dissent. 70 Fed. Reg. at 2493. This
rule takes effect March 15, 2006.
January 24, 2006- In a complete reversal of its previous
position, the FDA issues a final rule regarding prescription
drug labeling, which contains a preamble that states
the FDA intends its rule to preempt all state law requirements
pertaining to a drug company’s obligation to
warn the public of a drug’s potential side-effects. 71 Fed.
Reg. at 3933-34. The labeling regulations take effect June
March 29, 2006- The FDA issues a final rule on dietary
noncariogenic sweeteners with preemption language in
the preamble that was not subject to notice and comment.
71 Fed. Reg. at 15563.
April 6, 2006- NHTSA issues a final rule for average
fuel economy standards for light trucks for 2008-11 with
much more extensive preemption language in the preamble
than was in the proposed rule. 71 Fed. Reg. at
May 22, 2006- The FDA issues a final rule on soluble
dietary fiber with preemption language in the preamble
that was not subject to notice or comment. 71 Fed. Reg.
July 25, 2006- The FDA issues a final rule on raw fruits,
vegetables, and fish with preemption language in the
preamble that was not subject to notice or comment. 71
Fed. Reg. at 42042.
August 1, 2006- The FDA issues a final rule on over the-
counter nasal congestion medication with preemption
language in the preamble that was not subject to
notice and comment. 71 Fed Reg. at 43360.
October 11, 2006- The Federal Railroad Administration
(FRA) issues a final rule regarding continuous welded
rail with language in the preamble seeking to expand the
preemption language in the Federal Rail Safety Act
(FRSA) and it was not subject to notice and comment.
71 Fed. Reg. at 59690.
December 13, 2006- The FDA issues a final rule regarding
the labeling of dietary supplements with preemption
language that was not subject to notice or comment. 71
Fed. Reg. at 74790.