States' Victory Against Preemption - FDA Approval Does not Block State Tort Claims Against Drug Makers

In a much anticipated decision, Wyeth v. Levine, the Supreme Court in a 6-3 decision upheld states' right to hold the drug industry accountable for not adequately warning consumers and prescribers of a drug's impact.  The pharmaceutical industry had argued that Federal Drug Administration approval of a drug's warning label pre-empts state claims of injury based on the failure by a company to warn of additional dangers not covered by the FDA-approved label.  The court rejected this argument.  As the Constitutional Accountability Center wrote in analyzing the decision:

In a key part of its ruling, the Court applied the “presumption against preemption” that the Court has used to preserve the traditional authority of the states to protect their citizens, describing it as one of the two “cornerstones of our preemption jurisprudence.”

The Bush Administration had sided with big business interests by including language preempting state laws in regulatory preambles -- or, the introduction to regulations outlining the reasoning behind the rules.  These preambles, however, are not formulated through a public comment process.  However, the Court rejected such regulatory endruns around laws that had no intent to preempt state law.  

As Public Citizen notes, the FDA is "overworked and underfunded, and it depends almost entirely on drug companies for information about the safety and effectiveness of drugs," so initial approval of a drug label should not be taken as a permanent bar on those potentially injured by the drug from having legal protections.  Once a drug is widely marketed, new problems often appear, so state law should hold those companies responsible for failure to warn about those new dangers as they appear.

The broader principle here is that federal law should provide a "floor, not a ceiling" on consumer rights. As Justice Thomas wrote (in a break from his conservative colleagues), state laws should not be struck down because courts somehow divine an "implied preemption" based on the supposed "intent or purpose" of federal law.  State laws should only be rejected when there is a clear conflict with the text of  federal law.

Open Space for Campaign Reform Created by Former Illinois Governors' Woes

With one former Governor in jail for racketeering and another removed and indicted for selling political appointments for large campaign donations, now might just be the time that Illinois finally reforms its government.  The new governor, Pat Quinn, has formed the Illinois Reform Commission.  The Commission is tasked with making recommendations within 100 days on how to reform the government and finally stemming the corruption for which the state has long been famous.  The commission has already identified loose campaign finance regulations and the lack of transparency as the primary drivers of corruption in state government.  Now they are traveling around the state to hear from experts and citizens on what they think needs to be done.

At the most recent public forum Commission members heard from several witnesses that the lack of campaign contribution limits are the fundamental problem with Illinois politics.  Cindi Canary of the Illinois Campaign for Political Reform told the Commission "Time and again, our political scandals can be boiled down to one common element: the unbridled quest for campaign money."  And while the current system is "obviously not working," lawmakers have "a profound interest in ensuring that the status quo is not changed."  One strong piece of evidence to support those contentions is that lawmakers have not funded enforcement of the modest reform that they passed last year, which prohibits people or businesses with government contracts of $50,000 or more from making political contributions to the state officeholders who award the contracts.

At a different meeting of the state legislature's Joint Committee on Government Reform held days later, the same issue came up again when Author Scott Turow, a member of the Executive Ethics Commission, said government ethics reform “cannot proceed effectively unless it’s also accompanied by campaign finance reform.”  Regular folks who have come to speak at the Reform Commissions hearings have also expressed strong support for campaign reform, including public financing of elections.  It is clear that a concensus is forming on the need for serious campaign finance reform in Illinois, however, only time will tell if the resistance that has prevented reform in the past will be overwhelmed by the string of scandals plaguing the state.