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1.7.1 Overview

Federal preemption of state warranty-type claims is an issue for certain highly regulated types of products, primarily medical devices, medications, pesticides, and herbicides. Manufacturers also sometimes argue, usually without success, that federal regulation of motor vehicle safety issues preempts consumer claims. The effect of the National Manufactured Housing Construction and Safety Standards Act on manufactured home warranty claims is discussed in §§ 17.3.5, 17.3.7.1, 17.3.7.2, infra.

There are three types of preemption. First, Congress can explicitly express an intent to preempt state law in the federal statute. This type of preemption is express preemption.

The second type of preemption, conflict preemption, is implicit in the statute’s structure or purpose. Conflict preemption will be found when the state law actually conflicts with the federal law. For example, compliance with both state and federal law may be a physical impossibility, although “[i]mpossibility preemption is a demanding defense.”189 Or the state law may stand as an obstacle to the accomplishment and execution of the full congressional purposes.190 Conflict preemption should not be found when Congress intended its standards to be a minimum standard that could be supplemented by the states.191 Further, a federal law that imposes standards on an industry does not implicitly preempt state laws that create remedies by which victims can be compensated.192

Field preemption, the third type of preemption, exists when the federal law so thoroughly occupies a field that it is reasonable to infer that Congress wanted to leave no room for states to legislate.193 Like conflict preemption, it is implicit in the statute’s structure or purpose.

The same federal statute may expressly preempt some aspects of state law and impliedly preempt others.194 However, congressional silence about preemption is powerful evidence that it did not intend to preempt state law,195 particularly when there is evidence that Congress was aware of the operation of state law in the area.196

State law may be preempted not only by a federal statute but also by a federal regulation when a federal agency, acting within the scope of its congressionally delegated authority, acts to preempt state law.197 However, when Congress has not directly authorized an agency to preempt state law, courts will not defer to the agency’s conclusion about whether state law is preempted but will give it only the weight that its thoroughness, consistency, and persuasiveness deserve.198 Courts give little weight to an agency’s failure to regulate or to agency pronouncements such as letters that are issued without a formal proceeding.199

Two points should be stressed when arguing against preemption. First, there is a presumption against preemption in all or most preemption cases relating to warranty-type issues.200 Particularly when Congress has legislated in a field that the states have traditionally occupied, courts should “start with the assumption that the historic police powers of the States were not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.”201 The Supreme Court has repeatedly stressed this point, and it deserves full development in any brief on preemption. This presumption applies even if the federal government has long regulated the activity.202

Second, the intent of Congress is the ultimate touchstone.203 The Supreme Court has often consulted clauses in statutes that state their purposes, or the legislative history of the law in question.204

Choice of forum may be critical in these cases. As a broad generalization, state courts have tended to be less willing than federal courts to abrogate warranty and tort remedies in favor of a federal regulatory scheme that affords no remedy to injured persons.205 Federal preemption is a defense that the defendant can raise in state court and, except in rare cases when the “complete preemption” doctrine applies, doing so does not deprive the state court of jurisdiction.206

Footnotes

  • 189 {181} Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009).

  • 190 {182} Barnett Bank v. Nelson, 517 U.S. 25, 31, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996).

  • 191 {183} Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009) (FDA requirements for prescription drug labeling do not preclude manufacturers from adopting stricter warnings in light of new information or new analysis); Wuebker v. Wilbur-Ellis Co., 418 F.3d 883 (8th Cir. 2005).

  • 192 {184} Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S. Ct. 518, 154 L. Ed. 2d 466 (2002).

  • 193 {185} Cipollone v. Liggett Group, 505 U.S. 504, 112 S. Ct. 2608, 2617, 120 L. Ed. 2d 407 (1992).

  • 194 {186} Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001); Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S. Ct. 1912, 146 L. Ed. 2d 914 (2000).

  • 195 {187} Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001).

  • 196 {188} Wyeth, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51.

  • 197 {189} New York v. Fed. Energy Regulatory Comm’n, 535 U.S. 1, 122 S. Ct. 1012, 152 L. Ed. 2d 47 (2002).

  • 198 {190} Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009) (rejecting FDA’s “preemption by preamble” of state tort law as applied to claims regarding prescription drugs).

  • 199 {191} Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 245–247 (3d Cir. 2008); MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475 (Tex. 2010).

  • 200 {192} Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009). See also Sikkelee v. Precision Airmotive Corp., 822 F.3d 680 (3d Cir. 2016) (presumption against preemption applies to airplane design defect claim despite federal involvement in the field); Henryhand v. Dorel Juvenile Grp., Inc., 2017 WL 7806620 (C.D. Cal. June 13, 2017) (presumption against preemption in area of motor vehicle safety).

  • 201 {193} Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 125 S. Ct. 1788, 1801, 161 L. Ed. 2d 687 (2005); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996). See also Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 248 (3d Cir. 2008) (presumption against preemption has force for state failure to warn claims, an area of traditional state regulation); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Products Liab. Litig., 754 F. Supp. 2d 1145 (C.D. Cal. 2010) (presumption applies; relevant field is not automobile recalls, but automobile safety, which states have traditionally occupied); Chamberlan v. Ford Motor Co., 314 F. Supp. 2d 953 (N.D. Cal. 2004) (presumption against preemption applies in recall-type motor vehicle safety cases). But see Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 121 S. Ct. 1012, 148 L. Ed. 2d 854 (2001) (presumption against preemption only appropriate in fields that states have traditionally occupied).

  • 202 {194} Wyeth, 555 U.S. at 565 n.3.

  • 203 {195} Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009); Medtronic, Inc. v. Lohr, 518 U.S. 470, 487, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996) (noting “perverse effect of granting complete immunity from design defect liability to an industry that, in the judgment of Congress, needed more stringent regulation”); Weiland v. Telectronics Pacing Sys., Inc., 721 N.E.2d 1149 (Ill. 1999).

  • 204 {196} See, e.g., Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009); Medtronic, Inc. v. Lohr, 518 U.S. 470, 490, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996). See also Choate v. Champion Home Builders Co., 222 F.3d 788 (10th Cir. 2000) (construing National Manufactured Housing Construction and Safety Standards Act not to preempt manufactured home buyers’ strict liability suit is consistent with Act’s purposes to reduce personal injuries and deaths resulting from manufactured home accidents and to improve quality and durability of manufactured homes).

  • 205 {197} Compare Mitchell v. Collagen, 126 F.3d 902 (7th Cir. 1997) (pre-market approval process preempts most state claims), with Weiland v. Telectronics Pacing Sys., Inc., 721 N.E.2d 1149 (Ill. 1999) (pre-market approval process does not impose substantive requirements on manufacture or design so does not preempt state warranty and defective design claims).

  • 206 {198} Mills v. Warner Lambert Co., 157 S.W.3d 424 (Tex. 2005). See generally National Consumer Law Center, Unfair and Deceptive Acts and Practices §§ 11.5.5, 11.5.6 (9th ed. 2016), updated at www.nclc.org/library.