The Bush Administration is using federal rulemaking to limit the rights of consumers to seek damages under state laws governing faulty products. In that regard the Consumer Product Safety Commission (CPSC) is following in the footsteps of the Food and Drug Administration (FDA) and the National Highway Traffic Safety Administration (NHTSA). Last month, the FDA attempted to limit consumers’ ability to recover damages for injuries from agency-approved drugs. Meanwhile, the NHTSA is seeking to give automakers similar legal immunity from lawsuits over defective roofs if their vehicles meet new roof-crush standards proposed by the agency. NHTSA is also proposing to limit consumer lawsuits in a rule that would address seat-belt requirements.

When the CPSC came out with the final language on their mattress flammability rule last month, preemption of state common law claims was added to the preamble. This came after the notice-and-comment period had expired. The Consumer Federation of America, The Consumers Union, and other consumer groups are leading the fight against this latest move. The CPSC was scheduled to meet and vote on this rule on February 16th. The Commission is composed of three Commissioners – two Republicans and one Democrat. Unless this movement is checked, I expect that we will continue to see more preemption language coming from the federal regulatory agencies. The CPSC rule is just another attempt to shut the courthouse door to victims of corporate wrongdoing. Something that can’t be achieved in Congress is being sought through regulatory agencies, which are created by law and don’t have the statutory authority to do this sort of thing without the approval of Congress. Most people don’t ever know about such things until after they happen – then it is sometimes too late to do anything about it.

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