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

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

Thursday, March 5, 2009

PERMALINK: http://www.progressivestates.org/node/22800

Increasing-Democracy

By: NATHAN NEWMAN

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.

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Growing-Economy

By: NATHAN NEWMAN

Recovery Resources Update

Overall:  ProPublica has created a new site, Eye on the Stimulus, to track developments in the recovery package around the country.  The organization is also working with the morning news program The Takeaway and WNYC in creating Shovel Watch, a project to combine investigative reporting and public comments to help monitor recovery money from "bills to building."

A broad coalition of groups have signed onto these Principles for State Implementation of ARRA, which emphasize directing funds to benefit those hurt most by the recession and assuring that funds are spent in an open and accountable manner.

Rep. Jim Moran's office has produced a recovery plan implementation memo that emphasizes How the new Recovery Package Benefits Nonprofits (create link), which notes, along with general information, that the Community Development Block Grants (CDBG) program has $50 million is set aside specifically for a new program to strengthen nonprofits.

Transparency:  A broad coalition in New York, the Stimulus Oversight Working Group, has released Common Principles for Transparency and Accountability that emphasizes removing lobbyist influence over distribution of federal funds, setting up standards in distributing funds to individuals and communities where the impact will be most effective, and a transparent system for tracking all details of companies and organizations receiving stimulus funds.

A good Stateline article highlights the challenges states are facing in meeting the transparency requirements for the recovery plan, especially the need to collect more data on job creation by state and local government contractors.

Health Care:  The Academy Health/ RWJF's State Coverage Initiatives project has released How States Can Build on New Federal Legislation that Subsidizes COBRA Coverage for Laid-off Workers to enact or extend mini-COBRA laws and add additional subsidies for health care for workers facing layoffs.

Clean Energy and Green Jobs: The Apollo Alliance has created a new resource, Recovery Act Information Center: What You Need To Know, with summary of key provisions and resources for funding of green economy initiatives.

 


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Increasing-Democracy

By: christian smith-socaris

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.

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Valuing-Families

By: caroline fan

Paid Sick Days Bills Moving Across Country

Fifteen states have introduced paid sick days legislation to ensure that workers are able to regain their health without losing pay, or even worse, their jobs.  These are based on model policies that have already passed in San Francisco, CA, Milwaukee, WI and Washington, DC.

During fragile economic times, workers are too often forced to choose between their health, or the health of their kids, and maintaining a paycheck.   Paid sick days legislation helps families avoid that tradeoff, while increasing workplace productivity by ensuring that workers don’t have to work while sick, thereby decreasing the spread of disease to coworkers. Many bills under debate protect parents’ ability to take care of their children and other immediate family members, and time off to deal with domestic abuse. A number of bills have especially promising campaigns:

  •  North Carolina’s HB 177 has been introduced and is supported by more than 30 organizations, including the AARP and ACORN.
  •  Connecticut’s HB 6187 passed out of committee and is closer to becoming law.
  •  Minnesota's HF 612 / SF 461 is scheduled for a committee hearing on March 6th.
  •  Massachusetts’s HD 1726 / SD 624 is being promoted as creating an equal playing field for all businesses, since the majority of workers in Massachusetts already have some form of paid sick days, and as a way to contain health care costs in the state.  A report by the Institute for Women’s Policy Research found that paid sick days legislation would save $1.5 million annually in health care expenditures just from lower flu contagion at work.

Advocates promote paid sick days as both a moral issue but also smart, common sense policy that can hold down health care costs while increasing productivity and decreasing turnover.

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Valuing-Families

By: adam thompson

Expanding Access to Dental Care

State Sen. Ray Cleary, a South Carolina Republican, has proposed S.286 to create a free dental screening program for schoolchildren in at least 3 of the state's poorest counties - where children are most likely to go without regular dental care. Sen. Cleary, a dentist himself, wants to combat the adverse effects that poor dental health has on a child's education, including the inability to focus while in school because of pain and missed school days. According to the Pew Center on the States, tooth decay is the most common childhood disease, affecting 60% of all children and causing kids across the country to miss 51 million hours of school time each year.

Sen. Cleary's bill would require dental screening in schools in kindergarten, third, seventh, and tenth grades (or whenever a student first enrolls). A coordinator would line up dental visits, help eligible children enroll in Medicaid or SCHIP, and provide transportation to appointments if needed.

Elsewhere, in Maine, primary care doctors are learning basic dental care to help address a severe and worsening dentist shortage in the state. As the New York Times reports, Maine has one dentist for every 2,300 people, compared with the national average of one dentist per 1,600 people. Maine is a predominantly rural state and this program helps to create a dental safety net for the state's rural poor who often don't have the means to travel distances for dental care or the necessary education to better care for their own teeth. The program, which is not statewide, is currently run out of two medical centers.

The American Dental Association and the American Academy of Pediatrics announced a similar program in 2008 to train pediatricians in basic dental care in several states, including Illinois, Iowa, North Carolina, and Washington.

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Research Roundup

Reports Continue to Highlight the Dire Economy but also Tools for Recovery:

  • Recovery package eases but does not eliminate job woes- As EPI highlights in this state-by-state map of projected job losses, even with the recently passed stimulus package, most states will still have fewer jobs at the end of 2010 than they did before the recession began.
  • Pensionomics: Measuring the Economic Impact of State & Local Pension Plans - This new report finds that state and local government pension plans have a significant economic footprint:  supporting 2.5 million American jobs and had  $358 billion in economic impact.
  • The Future of Middle-Skill Jobs - This brief from the Brookings Institution examines the importance of mid-level jobs in helping disadvantaged workers move up the economic ladder.  With demand for those mid-level jobs growing, we need policies to help low-income workers gain the education and training to qualify for them.

Dropping the Ax: Illegal Firings During Union Election Campaigns, 1951-2007 - Surveying over a half century of union represenatation elections, this Center for Economic and Policy Research (CEPR) report  finds a significant increase in the current decade of illegal firings of workers seeking to form a union.  Pro-union workers were fired in 26 percent of union election campaigns over the period 2001-2007. 

Voter Registration Modernization: Policy Summary - This report from the Brennan Center for Justice makes a series of recommendations for reform of voter registration procedures, including federal funding to encourage universal registration at the state level and procedures to ensure voters remain on the rolls when they move.

A Couple of New Immigration Reports this week:

  • Debunking the Myth of "Sanctuary Cities" - Community Policing Policies Protect American Communities -  Cities that protect the ability of immigrant witnesses and victims of crimes to talk to the police without having their immigration status investigated help promote community policing that protects public safety, as documented in this report by the Immigration Policy Center.  And despite anti-immigrant mischaracterization, such "sanctuary cities" have a documented history of complying with federal law in assisting immigrationa agents in indentifying undocumented criminals.
  • State Identity Theft Bills -  With an explosion of state anti-immigrant measures that focus on use of a made-up or purchased social security number as “identity theft,” NELP has just completed this fact sheet to help fight back against these misguided proposals.  

Money for Nothing: Do Business Subsides Create Jobs or Leave Workers in Dire Straits? -  Despite spending millions of dollars annually to encourage private businesses to create good-paying jobs, the report by the West Virginia Center on Budget & Policy concludes  is getting little in return and recommend better public disclosure on each program, the jobs created and an annual unified development budget to track overall economic subsidies.


Please email us leads on good research at research@progressivestates.org

Resources

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

Supreme Court - Wyeth v. Levine
Constitutional Accountability Center - Supreme Court Decides Wyeth: A Victory for Diana Levine and the Constitution
Public Citizen - Supreme Court Correct to Uphold Right of Injured Patients To Sue Drug Companies
Progressive States Network - Federal Preemption Must Be Explicit

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

Progressive States Network - Reduce the Influence of Money in Politics
Illinois Reform Commission
Illinios Campaign for Political Reform (ICPR)
ICPR - Tainted Democracy
Galesburg Register-Mail - 'Pay-to-play' demonstrates need for reform, panel told

Paid Sick Days Bills Moving Across Country

Everybody benefits - Connecticut's Campaign for Paid sick days
National partnership for women and families 
Valuing Good Health in Massachusetts - Institute for women's policy research.
Paid Sick Days on Ballot in Milwaukee - Progressive States Network

Expanding Access to Dental Care

Pew Center on the States - Children's Dental Health

PSN On the Air

PSN's Health Care Policy Specialist Adam Thompson participates in a round table discussion on Laura Flanders's GritTv to discuss the prospects for comprehensive health care reform on the eve of President Obama's Health Care Summit. Other panelists Monica Sanchez of the Campaign for America's Future, California Nurses Association member Martha Kuhl, and Dr. Walter Tsou of Physicians for a National Health Program.

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The Stateside Dispatch is written and edited by:

Nathan Newman, Interim Executive Director
Caroline Fan, Immigration and Workers' Rights Policy Specialist
Julie Schwartz, Broadband and Economic Development Policy Specialist
Christian Smith-Socaris, Election Reform Policy Specialist
Adam Thompson, Health Care Policy Specialist
Julie Bero, Executive Administrator and Outreach Associate
Austin Guest, Communications Specialist
Marisol Thomer, Outreach Coordinator

Please shoot us an email at dispatch@progressivestates.org if you have feedback, tips, suggestions, criticisms, or nominations for any of our sidebar features.

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