During the Bush administration, and its do-anything-help-big-business approach, agencies were required to insert "preemption" language into all regulations, rules, and policies that  the agencies promulgated.  This was intended as an attempt to "protect" corporations from state laws and regulations that had the effect of imposing stricter requirements, especially with regard to product safety.  One big "win" for this approach was the U.S. Supreme Court decision in Reigel v. Medtronic, which held that people injured by a medical device "pre-approved" by the FDA could not file a lawsuit claiming that the device was defective as a matter of state law.  A not so successful attempt to use preemption for food cases was that tried by the Excel Corporation in litigation arising from an E. coli O157:H7 outbreak linked to a Milwaukee-area Sizzler restaurant. In those cases, Excel argued that its admittedly contamianted meat was neither defective nor unsafe because USDA policy at the time only prohibited this deadly pathogen from being in ground beef. (For an op-ed piece I wrote about this USDA policy, see Who does the USDA Really Protect, which can be found here: www.marlerblog.com/2008/08/articles/lawyer-oped/who-does-the-usda-really-protect-when-it-comes-to-deadly-e-coli/)

But now most of the arguments in favor of preempting state law in favor of "uniform" federal regulations are going to be undercut by a just-issued Executive Order that declares a new (or renewed) era of states rights.  The introductory paragraph of the Order is telling and compelling:

From our Nation’s founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government’s role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

Not only does this Order announce a new direction, it requires the heads of all federal agencies to "review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law," and to remove them.  So once more the role of the state in protecting its citizens from unsafe food and other products is restored to its rightful place.  More importantly, the next time that a big food company argues that the USDA said it was okay to poison people, it will likely get laughed out of court. Or at least we can hope so.

To read the full text of the Executive Order, please click on the Continue Reading link.Continue Reading New Obama Policy Allows States to Be Tougher on Food Safety