WASHINGTON (AP) - The Obama White House on Wednesday undid a
Bush administration policy that used federal regulations to
undermine a wide range of state health, safety and environmental
Many of the federal regulations limited the ability of injured
consumers to sue companies in state courts.
The move involving a policy known as "pre-emption" marks the
latest step by President Barack Obama to redo the policies of his
"When it comes to pre-emption, we're saying no more of their
approach," said Kenneth Baer, communications director at the White
House Office of Management and Budget. "We're going back to making
it clearer and more orderly and more defensible under the law."
In a memo to government department heads, Obama said that
pre-emption of state law should be undertaken only with full
consideration of the legitimate prerogatives of the states.
The Bush administration rule-making effort also had undercut
state financial regulation and state consumer protections in many
Trial lawyers who file class-action lawsuits on behalf of
millions of consumers praised Obama's action.
During President George W. Bush's second term in office, more
than 50 federal regulations were proposed or adopted that included
language to limit state lawsuits.
Often, the pre-emption language was written into the preamble of
the regulation without the public first having an opportunity to
comment on it.
The new approach will look both backward and forward.
The Obama administration will ask agencies to go back and find
Bush-era regulations that contain pre-emption language in the
preambles or in the body of the regulations and that are not
justified by law.
Under the new approach, the administration will drop the Bush
administration's approach of putting pre-emption language into the
preamble of a regulation, unless it also is contained in the
regulation. And any pre-emption language in the regulation itself
has to be legally justified.
Decried by consumer advocates and embraced by industry, the Bush
administration's rule-making authority represented its final act in
a long-standing drive to shield companies from lawsuits that
carried the threat of large damage awards.
The Obama administration has "overturned actions taken by Bush
administration bureaucrats who were influenced by powerful,
well-connected corporations," said Les Weisbrod, president of the
American Association for Justice, which represents trial lawyers
around the country.
The Bush administration and business groups had some successes
in asserting the primacy of federal regulation over rules that
might differ from state to state.
In one Supreme Court case, the justices ruled that Food and Drug
Administration approval shields medical devices from most lawsuits.
The case turned on a provision of federal law prohibiting states
from imposing their own requirements on the devices.
In March, however, the Supreme Court forcefully rejected calls
for limiting consumer lawsuits against drug makers, upholding a
$6.7 million jury award to a musician who lost her arm to gangrene
following an injection.
The central issue in that case was the absence of language in
the federal law setting out regulation of prescription drugs that
forecloses consumer complaints in state courts. Congress has
included such language in other areas.