Preemption By Preamble: Federal Agencies and the Federalization of Tort Law

34 Pages Posted: 4 May 2006


In the preamble to its most recent (effective June 2006) prescription drug labeling rule, the Food and Drug Administration (FDA) made clear its belief that "FDA approval of labeling under the act . . . preempts conflicting or contrary State law." The latest rule (effective July 2007) handed down by the Consumer Product Safety Commission (CPSC) includes a sweeping preamble statement that the new federal standard preempts "inconsistent state standards and requirements, whether in the form of positive enactments or court created requirements." And, if the National Highway Traffic Safety Administration (NHTSA) has its way, its new safety standard for roofs on sport-utility vehicles will include language immunizing auto manufacturers from state tort lawsuits over defective roofs if their autos meet federal safety standards. Dubbed "silent tort reform," these preemption preambles may be only the tip of the iceberg, a harbinger of a future where federal agency regulations come armed with directives to displace competing or conflicting state regulations or common-law as a matter of course.

With the issuance of these recent controversial preambles, federal agencies have thrust themselves into the preemption spotlight. In the "tale of three agencies" that follows, I place the recent aggressive stances adopted by the CPSC, the NHTSA, and the FDA in sharp relief against a historical backdrop of more mixed (and often muted), preemption positions. Next, setting the stakes of the agency preemption debate, I highlight a discernible trend — both in the Supreme Court and lower courts — in the direction of deference to agency preemption determinations. Given the momentum in this direction, I expose a potentially troublesome asymmetry: agencies are given fairly expansive discretion to interpret or declare the preemptive scope of the regulations they promulgate, but when it comes to inferring private rights of actions under those same regulations, their hands are tied by judicial tether. As Justice Scalia colorfully responded in the latter context: "Agencies may play the sorcerer's apprentice but not the sorcerer himself." Why can an agency play the role of the sorcerer in the context of preemption, but must remain a lowly apprentice with respect to implied rights of action? At the extreme, a disquieting scenario emerges, whereby aggressive regulatory preemption, combined with renewed vigor toward evisceration of federal private causes of action, could lead to a nearly complete substitution of public for private enforcement of the law.

Even assuming the inexorable momentum towards federalization continues, as embodied most recently in agency preemption preambles, agencies and courts may have at their disposal means to harness this development in service of transparency, and, more ambitiously, a new era of accountability. Agencies might themselves foster federalism values by forcing Congress to confront the preemption question it has repeatedly dodged when it regulates products. Alternatively, agencies themselves might emerge as effective representatives of state interests, the situs for a rich, deliberative dialogue regarding the interplay of state law and federal regulatory schemes. Courts might condition deference to agency interpretations of the preemptive scope of regulations on compliance with various congressional and executive measures designed to increase the public participation of states, the legislature, and outside political groups: consultation mandates, "federalism impact statements," or even notice-and-comment periods required for all preemption statements. These information-forcing reforms would, at a bare minimum, shed light on what hitherto is an all-too-quiet, backdoor movement, in need of further scrutiny and debate.

Keywords: preemption, preamble, federal agencies, tort reform, FDA, NHTSA, CPSC

JEL Classification: K13, K23, K41

Suggested Citation

Sharkey, Catherine M., Preemption By Preamble: Federal Agencies and the Federalization of Tort Law. DePaul Law Review, Vol. 56, 2007, Columbia Public Law Research Paper No. 06-110, Available at SSRN:

Catherine M. Sharkey (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6729 (Phone)


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