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Federal Preemption Part II: What issues raise questions of federal preemption?

By Steve Lombardi

I’ve previously described federal preemption and why you should care. It’s about protecting people against corporate power that tends to trample on the rights of individuals for the sake of making greater profit.

In all these areas, billions of dollars hang on regulatory nuances and arcane points of legal interpretation. But the preemption debate is being waged in the context of broader, sometimes constitutional, arguments and presumptions concerning the role and utility of federalism and "states' rights" in a modern, highly mobile and integrated economy. Legal scholars are sharply divided both over the substance of those arguments and over the extent to which they should dominate economic considerations or statutory language in what is, after all, a large universe of highly particular, industry- or area-specific preemption arrangements. Most agree, however, that preemption law—especially the federal courts' muddled doctrine in this field—merits a serious re-examination.

For a general discussion with legal cites lawyers may wish to review Brian T. Hoyle’s May 1, 2001 Federal Preemption article. See also Facts About Federal Preemption, Monica Guizar, June 2007 and for clients there is always Wikipedia’s discussion. The Wikipedia article describes the types of preemption. Realistically no one cares about federal preemption unless money is involved and a lot of it. See the Federalism Project, Federal Preemption: Law, Economics, Politics.

Types of preemption

Two situations where preemption claims might or may arise: express preemption and implied preemption.

1. Express preemption occurs where Congress says within the statute 'we hereby preempt' or uses words of similar import. Here, federal laws are explicitly precluding state and local regulations.

2. Implied preemption has, within itself, three sub-categories: conflicts preemption, preemption because state law impedes the achievement of a federal objective, and preemption because federal law occupies the field.

o Conflicts preemption is where it is impossible to comply with both the federal statute and the state or local law. In this situation, the federal statute must be followed. It is, however, appropriate to have two laws, one federal and one state, that differ. The federal law, in this case, may be a minimum standard, while the state enacts a law to be more strict. State law, therefore, would not be preempted. Preemption would only occur if the federal and state laws were mutually exclusive.

o The second type of implied preemption is preemption because state law impedes the achievement of a federal objective. This type of preemption occurs when a state or local law interferes with a goal or objective Congress was trying to attain with a federal statute. The purpose of each law must be determined and compared to each other. If both laws are trying to achieve the same goal, federal law will preempt the state or local regulation.

o The final type of implied preemption is preemption because federal law occupies the field. In this situation, one must look at Congress's intent, and whether the federal law was meant to be exclusive in that area. The most common examples are in areas of foreign policy and immigration. Implied preemption has also been held to apply to the Labor Management Relations Act (LMRA), giving the federal government the exclusive jurisdiction to resolve Labor Union versus Employer contract disputes, as well as the Employee Retirement Income Security Act (ERISA), giving the federal government exclusive jurisdiction (with minor exceptions) over enforcement of the substantive provisions of employer-sponsored Welfare and Pension Benefit Plans (Cigna v. Calad, 2004), under the assumption that these laws were made "in Persuance" of the Constitution.

Immigration – Arizona Contractors Association, et al. v. Candelaria, et al., No. CV 07-2496-PHX-NVW, United States District Court for the District of Arizona

Product Safety - Warnings on cigarette packages concerning the effects of tar and nicotine. Philip Morris USA, et al. v. Good, et al., No. 07-562, Supreme Court of the United States

Prescription Drugs – The State of Michigan gives pharmaceutical companies almost complete immunity against product liability actions if the product received FDA approval. Warner-Lambert Co. LLC, et al. v. Kent, et al., No. 06-1498, Supreme Court of the United States; FDA Preemption of Failure to Warn Lawsuits, Wyeth v. Levine, No. 06-1249, Supreme Court of the United States

Implanted Medical Devices - Riegel v. Medtronic, Inc., No. 06-179, Supreme Court of the United States

Labor Union Membership and Rights to Unionize - Chamber of Commerce of the United States of America v. Brown (formerly Lockyer) , No. 06-939, Supreme Court of the United States

Consumer Rights – Forcing consumers with product complaints to use the one sided arbitration system that hardly ever sides with the consumer. Whether Decisions About Contract Validity Should Be Made By Arbitrators Or State Agencies, Preston v. Ferrer , No. 06-1463, Supreme Court of the United States

Transportation Safety on State Highways - Federal Preemption of Local Regulation of Motor Carriers, New Hampshire Motor Transport Association v. Rowe , No. 06-457, Supreme Court of the United States

Employment laws that regulate community hiring practices - Lozano v. City of Hazleton
No. 3:06-cv-1586, United States District Court for the Middle District of Pennsylvania

Regulation of banks and lending institutions - Federal Regulatory Preemption of State Banking Laws, Watters v. Wachovia Bank, N.A., et al., No. 05-1342, Supreme Court of the United States

Prescription sales regulations - Federal Preemption of State Regulation of Pharmacy Benefit Managers (PBMs), Pharmaceutical Care Management Association v. Rowe, No. 05-1297, Supreme Court of the United States

Making automobiles safer - Geier v. American Honda Co., Inc., 120 S.Ct. 1913, 1919 (2000).

Advertising fax ban that attempted to curb harassing communications - NCLC Obtains Stay of California's Advertising Fax Ban, Chamber of Commerce of the United States of America v. Lockyer [advertising fax ban], United States District Court for the Eastern District of California, No .2:05cv02257.

Radio frequency transmissions that may cause harm to residents living under the transmissions - Nokia v. Naquin, No. 05-198, Supreme Court of the United States.

Prescription Drug Labeling that misleads even health care workers - Remember the Dennis Quaid infant twins that were overdosed with Heparin due to what the hospital staff claimed were labels that caused confusion between infant and adult doses.

“The Quaid family is suing drugmaker Baxter Healthcare Corp., which is seeking dismissal of the lawsuit on federal pre-emption grounds that the FDA approved the labeling. "Like many Americans, I believed that a big problem in our country was frivolous lawsuits," Quaid told the House Reform and Government Oversight Committee. "But now I know that the courts are often the only path to justice." He said that if all lawsuits are pre-empted, "it will basically make us uninformed and uncompensated lab rats."”

Workplace safety standards - Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992),^[1] was a case in which the Supreme Court of the United States determined that federal Occupational Safety and Health Administration regulations preempted various Illinois provisions for licensing workers who handled hazardous waste materials. The state regulations had focused on health and safety, whereas the OSHA standards were aimed only at worker safety.

State government’s internal purchasing regulations - Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000),^[1] was a case in which the Supreme Court of the United States used the preemption doctrine to strike down a Massachusetts law that effectively prohibited Massachusetts' governmental agencies from buying goods and services from companies conducting business with Myanmar (Burma) — essentially, a secondary boycott. The Massachusetts Burma Law was modeled after similar legislation that had targeted the apartheid regime of South Africa.

Divorces involving Decrees where there is a Qualified Retirement Plan - Egelhoff v. Egelhoff, 532 U.S. 141 (2001), is a major decision of the Supreme Court of the United States on federalism, specifically with regards to the preemption powers of federal law over state laws. It sets the precedent that any state statutes having a "connection with" ERISA plans is superseded by ERISA, or any future substantially similar law that takes its place. In essence, this decision is a reaffirmation of the right and ability of the federal government to, at least in some instances, pre-empt state laws.

Ripeness standards for picking fruit - Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963),^[1] was a case in which the Supreme Court of the United States upheld a California law that imposed minimum ripeness standards on avocados imported into the state. The law barred retail sale of avocados that didn't meet the ripeness standard, which was measured by standard oil content. Florida, which grows a lot of avocados, used a federal standard of ripeness for wholesale marketing purposes. Florida brought this suit to oppose the California law, which it argued discouraged their right to engage in interstate commerce.

“In this case, the preemption doctrine failed because the court held that simultaneous compliance was possible. The Court employed a dormant commerce clause analysis and held that the law was not overly burdensome to interstate commerce. The Court found the California law to "do no more than promote orderly competition among the South Florida growers."”

Safe design of automobiles - Farnsworth v. General Motors Corp., 3AN-91-946 - Co-counsel representing a young woman injured when she submarined under a 3 point belt in a 1989 GMC Jimmy, causing severe internal and spinal injuries causing sepsis, lung failure, multi-level spinal compromise, and coma. Jury award: $2.1 in compensatory damages and $5.6 in punitive damages.

In two days we'll take this subject up again and discuss the players involved with each side. Until then be safe.

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on October 04, 2008 (boomark / email).