Wyeth v. Levine, Preemption and Federal Standards

On Monday morning, the U.S. Supreme Court hears oral arguments in Wyeth v. Levine, a major case dealing with pre-emption, that is, whether federal rules governing such products as medical devices or prescription drugs take precedent over state regulation. Generally speaking, businesses support the principle of pre-emption because a national regulatory regime — one that includes a single safety standard — provides for consistent legal treatment and predictability in costs.

Trial lawyers and self-proclaimed consumer activists dislike pre-emption because, they contend, state enforcement can encourage safer products and injured parties should not lose access to the state courts. Preemption also limits the number of venues where the trial lawyers can cash in on outrageous jury verdicts, it reduces the opportunity to play “Jackpot Justice.”

(The Wyeth case actually deals with drug labeling. The NAM’s Legal Beagle summary of the case is here; and earlier Shopfloor.org posts here.)

Anyway, a review of the news coverage previewing Monday’s oral arguments. Now, we haven’t read the articles yet in order to test a thesis: Just in time for Tuesday’s election, the articles will feature references to a “pro-business Supreme Court,” framed in the context of court appointments by the next President. So here goes…

Nope! (He said, cheerfully acknowledging error.) The stories all play the issue straight, not trying to fit the issue into a predetermined line about Obama v. McCain’s court appointments needed to fix the one-sided, anti-consumer Supreme Court.

Included in several is a very silly comment from a Fordham law professor , Ben Zipursky, commenting on the effect of a ruling in of Wyeth: “That effectively would cut off virtually all pharmaceutical liability for prescription drugs.”

The coverage does acknowledge a legitimate political angle, though, that is, Congressional Democrats have supported legislation to allow state lawsuits. Rep. Henry Waxman’s House Oversight Committee last week released a “report” on FDA career staffers objecting to the agency’s support for pre-emption. Because apparently some people believe mid-level agency staffers should have determine regulatory policy, no matter the results of an election.

Walter Olson has a post at Point of Law on pre-emption, with many links, including to several examining the Waxman document.

Leave a Reply