Federal Preemption of State Liability Claims under the FDCA

Abstract

Although the FDA has a history of working in cooperation with state governments, in recent years the Agency has increasingly sought to pre-empt certain state law rights of action and tort claims. Parts II and III of this paper will provide an brief overview of federal preemption law and move on to an account of how the FDA developed its strong pro-preemption stance. Next, Part IV will explore arguments both for and against federal preemption of certain state law claims. Part V discusses possible judicial reactions to the FDA's preemption position. Finally, Part VI proposes that courts should accept the Agency's preemption efforts are the most effective approach for the agency to fulfill its Mission.