In the last days of the Bush Administration, expect it to engage in lots of rulemaking. Many businesses will seek new rules for their industries now, fearing that less favorable outcomes will occur if they chance it with the Obama Administration. This business-initiated regulation will seek “ceiling preemption,” meaning that the federal rules will supersede and cap strong state regulations.
Preemption has a profound effect on consumer protection, because frankly speaking, Congress rarely takes the time to pass consumer protection laws. It has other important business, and there is a horde of lobbyists who get upset when consumer laws are even considered.
In light of a new report released by Rep. Waxman’s Committee on Government Reform, Alicia Mundy writes in the Journal that preemption became very popular in FDA rulemakings:
The administration began adding language to more than 50 regulatory rulings that pre-empt state standards and lawsuits at several agencies in 2005.
The first such ruling at the FDA appeared in January 2006, surprising outside observers because the language hadn’t appeared in earlier public drafts.
The report finds that:
…key FDA career officials strongly objected to Bush Administration drug labeling regulations that would preempt state liability lawsuits, asserting that the central justifications for the regulations were “false and misleading” and warning that the changes would deprive consumers of timely information about drug hazards.
No surprise. And expect much more of this. It will be difficult to clean this up. Practically speaking, undoing these rules will only be possible where there is political will to do so. So many other important issues will take priority first.