Understanding Preemption in Plain English

March 5th, 2010. By Kristine B

Over the last year or so, there’s been some discussion in the media about “preemption.” So, I thought I’d take this opportunity to explain preemption and why it’s important (specifically, why and how it affects you). 

In legal-speak, preemption is based on the Supremacy Clause of the US Constitution. That clause states that some matters are of national importance rather than local importance. In those matters, national (federal) law must take precedence over state laws. Furthermore, states cannot pass laws that are inconsistent with the federal law. Preemption extends downwards as well, so that state law takes precedence over community law. 

Ok—let’s give a completely unrealistic and ridiculous example to simplify things here. Let’s say our friends in Washington DC decide that Wednesdays should be “Wear Red” day—kind of a “have heart” or weekly AIDS Awareness thing. Now let’s also suppose that some state actually bans wearing red on Wednesdays. Whoops—would seem to be a problem here, right? Ahh, but with preemption, federal law could “preempt” state law and you could look forward to viewing a sea of red every Wednesday. 

Now, this happens where the matter is of national importance. Not every law is subject to preemption. Also, there are situations in which state and federal laws are similar and do not entirely contradict each other, leaving questions about which laws should be followed. 

For example, not all states have the same employment laws. There’s a federal law, called the Fair Labor Standards Act (FLSA) that sets out employee wages and hours worked. However, many states have laws that overlap with the FLSA and also set out wage and hour regulations. In those situations, it is notnecessarily the FLSA that must be followed. Instead, employers must follow the law that sets the higher standards. So, if the state law has higher wage rules than the FLSA, then employers in that state must follow the state’s law for paying employees. If the state’s law has lower wages than the FLSA, then the FLSA must be followed. 

So, what does this mean? It means that some laws are subject to preemption (meaning the federal regulation must be followed) and others are not. Ambiguous enough for you?

Why could preemption affect you? Preemption can affect where certain lawsuits are held and whether or not the lawsuits are considered valid. Let’s say there’s a large-scale lawsuit against a drug company (these things do happen). This lawsuit involves victims from many states. Lawyers can choose to file the lawsuit in either state court or federal court, depending on the exact circumstances and laws regarding the lawsuit. Some states have more favorable conditions for filing lawsuits than others, which could, potentially, affect the outcome of a lawsuit. 

This was big news about a year ago, when a plaintiff was awarded $6.7 million after losing her arm to gangrene following a shot of anti-nausea medicine to treat a migraine. The woman alleged that the drug’s maker, Wyeth, failed to warn about the risks associated with the procedure used to administer the medicine and sued the company in a Vermont court. Wyeth argued that federal law protected it from state lawsuits because the FDA (a federal organization) approved the drug’s label and knew about the risks of certain administrations of the drug. 

The Supreme Court found that federal law in this case did not preempt state law. However, that decision was a bit of a change from previous decisions in which courts have ruled that federal law preempts state claims. In this case, the difference was that Wyeth argued that it was not liable because the FDA approved the drug’s label. The majority of the justices at the Supreme Court did not agree with that argument.

Pre-emption was also a factor in the recent determination to allow a lawsuit against GlaxoSmithKline’s Paxil to go ahead.

So, some court cases are subject to preemption, some are not. Based on the Wyeth and GSK Paxil decisions, it appears that the tide is changing a bit and preemption is not always guaranteed. That could be a good thing because generally, state courts are more welcoming of plaintiffs than federal courts are.

Tags: Pleading Ignorance, Preemption

This was posted on Friday, March 5th, 2010 at 3:01 pm and is filed under Drugs/Medical, Pleading Ignorance . Feel free to respond, or trackback. Read our comments policy.