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Brooks Schuelke
Brooks Schuelke
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The Problem With Preemption

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The Bush Administration has long supported a policy of federal government rules and regulations preempting state court causes of action. For example, in December, the administration argued that pharmaceutical companies should not be liable to consumers for their defective products if the products were approved by the FDA.

But the problem is that the FDA is not well-suited to handle the responsibility. Today, the New York Times ran an article detailing the problems with the FDA. The article cites a recent General Accounting Office study that finds that the agency is understaffed and underfunded to properly do its role. A former FDA lawyer expected to testify for Congress in the upcoming weeks stated, “This is a fundamentally broken agency, and it needs to be repaired.”

But the problem only continues to get worse. According to the article, the FDA’s budget has been shrinking as its responsibilities have increased:

In the last 14 years, the drug agency has lost 1,311 employees and nearly $300 million in appropriations to inflation while Congress has passed more than 100 laws defining or expanding its regulatory responsibilities. The agency now regulates about $1 trillion worth of goods, or 25 cents of every dollar spent by consumers.

It is amazing in the face of these difficulties that the Bush Administration keeps pushing for preemption. Isn’t it apparent to everyone that the FDA hasn’t been equipped to handle the responsibilities shoved upon it? Isn’t it apparent that simply because a drug or device has been approved by the FDA that it’s not necessarily a safe drug or product? I would hope that most of us see that, but apparently some are still blind.