Preemption & Gender & Racial (In)equity: Why State Tort Law Is Needed in the Cosmetic Context

Abstract

Much of the legal scholarship on the preemption of state tort law in the food and drug context and beyond has focused on issues of federalism. While the literature has considered the relationship between state tort law and the regulatory system, it has not generally explored the impact the federal preemption of state tort law may have on women and people of color. Similarly, while the literature has grappled with gender and racial justice issues in the tort system, including in the context of tort reform, it has largely not examined the gender and racial equity issues raised by federal preemption. This Article fills this gap by examining how the federal preemption of state tort law may perpetuate and even compound existing racial and gender inequities in the context of cosmetics. It considers how tort law, coupled with appropriate federal regulatory reform, may help lead to safer cosmetics for all.

Keywords: Food and Drug Law, Cosmetics Law, Torts, Race, Gender, Cosmetics, Preemption, FDA