Federal Preemption of Inconsistent State Safety Obligations
M. Stuart Madden
Pace University School of Law
Pace Law Review, Vol. 21, P. 103, 2000
The reach of federal statutory preemption of inconsistent state law obligations has extended to numerous products liability subject matters, including most notably tobacco products, agricultural pesticides, medical devices and automobile air bags. The Supreme Court decision in Cipollone v. Liggett Group, Inc. countenanced a broad application of federal preemption when the subject statute contained an express preemption clause. Eight years later the Court appeared to back away from Cipollone, and held in Geier v. American Honda Motor Co. that even as to statutes with express preemption clauses, the simultaneous presence of a savings clause might trigger a narrow reading of the preemption provision. The potential effect of Geier upon lower court decisions in liability suits involving pesticides, medical devices, or even tobacco products, will necessarily be played out in litigation before lower courts for years to come.
The significance of federal statutory preemption of inconsistent state tort law obligations was branded on the hind-quarters of products liability law in the 1992 Supreme Court decision of Cipollone v. Liggett Group, Inc. Cipollone's emphasis on textual express preemption was followed by numerous lower court decisions holding that federal health and safety rules in product subject categories ranging from pesticides to prostheses to propellers should be given sway over inconsistent state common law liability or statutory obligations.
The Cipollone-sparked romp over the historical federal hesitance to impose federal regulation in areas of health, safety and welfare traditionally ceded to the individual states was brought to a pause, if not a halt, by the Supreme Court's 2000 decision in Geier v. American Honda Motor Co. In Geier, an air bag case, the Court gave new vitality to the application of ordinary preemption principles even in the context of a federal safety statute that contained an express preemption provision clause, should such statute also contain a 'savings' clause provision essaying to preserve common law damage claims from any preemptive consequences.
In general terms, federal safety-related statutes, or regulations pursuant to those statutes, that pertain to a particular field or subject matter may be deemed to preempt state regulation or common law that would impose design, performance, or informational requirements upon a seller that are inconsistent with the federal standard. Federal law may also preempt suits brought under state common law or state codification of common law principles that create the risk that a seller who has satisfied federal safety-related requirements might nevertheless be found liable in money damages, or subject to equitable relief, in a products liability suit. The primacy of federal law in such subject areas as Congress may elect to regulate is grounded in the Supremacy Clause of Article VI of the U. S. Constitution, which provides that the laws of the United States 'shall be the supreme Law of the Land; and . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'
Preemption may be either express or implied, and 'is compelled whether Congress's command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.' Issues of express preemption are textual, while questions of implied preemption are contextual. By this it is meant that the question of whether federal law expressly preempts inconsistent or additional state common law, statutory or regulatory requirements may be deduced from the explicit language of a federal statute. Implied preemption, in contrast, must ordinarily be inferred from an evaluation of not only the language of the statute, which may or may not contain a preemption clause, but also from an assessment of the overall statutory objectives. As to the latter, a full understanding of statutory objectives will frequently be informed by pertinent legislative history and the interpretation of the statute given it by the regulatory agency charged with its effectuation.
The approach taken by the Supreme Court in its interpretation of the Supremacy Clause as applicable to state law preemption 'starts with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.' Express preemption is properly found "[w]hen Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a 'reliable indicium of congressional intent with respect to state authority[.]" ' In the words of one court concerning express preemption: "Federal preemption is a relatively simple concept, especially when Congress has explicitly provided the terms of preemption. It provides order. Instead of having 50 or more standards with respect to a given human pursuit, there is one. When a preemptive federal standard is applied evenhandedly, it further provides both the protection of the federal standard and some leeway to develop state standards where the federal standard does not apply."
A party advancing the defense of federal preemption must overcome an established presumption against federal preemption of state law. Thus any statutory provision forming the basis of a preemption defense will be narrowly construed, consistent with the tenet that state police powers, particularly state regulations relating to health and safety, should not be superseded without a demonstration that such preemption is the 'clear and unequivocal intent of Congress.'
Cipollone v. Liggett Group, Inc. ended the long reign of judicial deference to state common law liability and regulatory obligations, and intimated that the existence of an express preemption provision might, standing alone, suffice to permit a finding of federal preemption. In so doing, the Court neutralized the effect of equivalently specific savings clauses that purported to preserve state products liability or regulatory actions from federal suffocation.
In Geier v. American Honda Motor Co., the Court refined its Cipollone analysis, and in so doing gave breathing room to extant and future savings clauses in federal safety-related statutes. The Geier court expanded little in suggesting a means for lower courts to proceed with confidence in reconciling express preemption provisions with similarly explicit savings clauses. The result of the Court's recalcitrance will surely be played out in the decisions of lower courts which are now left to decide if savings and preemption clauses may be interpreted in a complementary way. The inevitable consequence of the Supreme Court's failure to harmonize Cipollone and Geier will be a bumper crop of conflicting decisions brought about by the inability of courts to determine in a consistent way whether the polar magnetic field of express preemption clauses, or that of savings clauses, is the stronger.
Date posted: September 27, 2001