Federal Preemption Must Go

I doubt most of us spend a lot of time worrying about what’s on the Supreme Court docket.   How I can certainly name more Supreme Court rulings than Sarah Palin, I don’t keep up on current cases in front of the Supreme Court.   But I was recently informed about a couple of cases that I think might be the most important in a very long time; the cases of Wyeth v. Levine and Altria Group v. Good.  Both these cases involve federal preemption, a doctrine that can stop state lawsuits over products that have met federal safety standards.

Wyeth v. Levine

Eight years ago Dianna Levine, a 54 year old musician, entered the emergency room of a Vermont hospital for treatment of a sever migraine.   Levine, a long time migraine sufferer, was not new to the treatment for headaches.   She was usually given the   pain killer Demerol and another drug Phenergan to control the nausea that often accompanied the Demoral.   But on this visit, the Phenergan was administered through an IV push.   This decision forever changed Levine’s life.

Levine woke with the pain persisting, and then spent the next 2 weeks visiting doctors who were now trying to figure out a way for Dianna Levine to keep her right hand.   It seems one of the possibilities one faces when given an IV push of Phenegran is the risk of amputation.     Levine was dealing with gangrene in her arm, which had to be amputated right below the elbow.  

Levine filed action in the state of Vermont against Wyeth.   She was awarded $6 million.   Wyeth appealed, and Levine won a judgement by he Vermont State Supreme Court.   But Wyeth has appealed again, and this time to the United States Supreme Court, which has agreed to review the case.  

Wyeth’s defense in this case is that because the drug was approved by the Federal Drug Administration, they should not be held responsible for the claim.

Altria Group v. Good

Another case to consider is that of Altria Group v. Good.   In this case, Main smokers allege that Philip Morris, a major cigarette company has defrauded them by advertising “light” cigarettes as a healthy choice, when in fact these “light” cigarettes expose the smoker to the same level of nicotine and tar as an average cigarette.

Attorneys for Philip Morris say they should be protected by Federal Cigarette Labeling and Advertising Act of 1965, as amended in 1970. This is the amendment that forced cigarette companies to put those nasty warnings on the side of the packages, and put cigarette advertising regulations in the hands of the Federal Trade Commission.  

The attorney representing the smokers argues that the preemption clause should not apply to claims that allege false advertising.   To put in plainly, just because the cigarettes comply with admitting the health risks on the label, they are not allowed to fraudulently market their product and make false statements to sell more of it.

Why Preemption matters in these cases

Both cases bring a very big risk to the rights of Americans.   The main question the Supreme Court Justices will be dealing with here is wether or not complying with, or gaining acceptance from, a department of the federal government insulates companies from suits against their products in state courts.  

When you think for a moment about living in a world where corporations don’t face any consequence for the harm a bad product can cause once they gain FDA approval, you will likely feel as strongly about this as I do.   The FDA is our first line of defense.   It can not, and should not be our only line of defense.  

Justin Demerath is a personal injury lawyer in Austin, TX., and is also take on cases against big pharmaceutical, including Trasylol lawsuits, and I asked him to weigh in on this issue for me.   Here is what he said. “I am optimistic the US Supreme Court will not buy the bogus arguments that the proponents of federal preemption are advocating, and acknowledge that state laws do not interfere with the FDA’s regulation of pharmaceutical drugs.  They should recognize that the FDA’s role is to provide minimum safety standards, not immunize drug companies from liability.  Only this action will restore the balance set out in our Constitution that allows the states’ historic “police powers” to protect the health and safety of citizens.  Ruling against federal FDA preemption of state law claims is the only course that will protect the citizens of our country from the Pharmaceutical Drug industry that quite often puts profits over people.”

Mr. Demerath puts this much better than I.   The current administration stands behind the idea of federal preemption, which is funny considering the traditional Republican stance of less big government in our lives.   But I guess in a few million in pharmaceutical dollars can change even the most stubborn of minds.  

If you’re now as outraged as I am, you may want to know what you can do to help protect your rights.   You can start with getting this issue out there.   The more people know about this, the harder it is for big pharmaceutical to hide what they’re doing.   The next step is to make yourself heard.   Contact you local congressman and ask them to do what they can on the issue of federal preemption.   Remind them that they are there to look after the citizens rights, not the pharmaceutical company.


  1. Excellent post! This is an incredibly important issue right now, and everyone needs to be away of the outcome it will have on the country.

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