Yesterday, President Obama released a presidential memorandum to all executive agencies outlining the administration’s position with respect to complete immunity preemption.
In an exciting departure from Bush-era policy, Obama wrote that "[t]hroughout history, State and local governments have…protected health, safety, and the environment more aggressively than…the national Government." He went on to write that "[e]xecutive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values."
This is a major victory for the rights of all Americans under state law and is the culmination of years of tireless and dedicated effort by AAJ’s Regulatory Affairs team, headed by Gerie Voss. In order to ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis, the President’s directive provides that:
"1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption…
3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation."
While yesterday’s memo was a step in the right direction, the futures of thousands of victims harmed by dangerous products remain uncertain following federal court decisions that codified the Bush administration’s preemption policy. AAJ President Les Weisbrod said in a statement yesterday, we continue to "look to Congress to remedy those wrongs and they can start by passing the Medical Device Safety Act."