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Federal Rules May Prevent Texas Consumers From Being Protected

It was recently reported in the Wall Street Journal (WSJ) that President Bush is attempting to use his last months in office to enact rules that will prevent consumers injured by dangerous products from seeking compensation. Issuing rules, rather than having Congress review and pass laws, the administration is attempting to protect corporations and is using federal agencies to affect these changes. The Food and Drug Administration (FDA), along with the Department of Transportation (DOT) and the Office of Management and Budget (OMB) among others, have sought to add rules that will preempt consumers from seeking compensation if a corporation follows federal guidelines when developing and marketing a product. While this sounds all well and good – the idea of having federal guidelines in place that must be followed and the prevention of requiring a company to try and follow up to 50 different states laws and regulations – the reality is quite different.

Federal agencies such as the FDA are under funded and understaffed. These agencies do not have the ability to evaluate the pitfalls and dangers in every product put before them, or every product placed in the market place. The result is that products that have not been properly tested, or that are inherently dangerous, can end up on store shelves. Each state has laws in place to protect it citizens and consumers. Supporters claim that preemption protects corporations from having to follow 50 different guidelines. However, the majority of states have similar laws that simply require a product manufacturer to exercise reasonable care in their efforts and these laws protect consumers when a company places a product that is inherently dangerous in the stream of commerce. Similarly, most states have laws that require a company to market, or advertise its products by providing reasonable warnings that need to be followed to use a product safely.

By utilizing rule making authority, the administration and the federal agencies are avoiding the oversight and review of congress, and further, are implementing rules that cannot be simply undone. Although avoiding the review process to enact these rules, a lengthy federal review is necessary to retract these rules, making the process seem backward. Some examples of recent rules that have been enacted include: October 8, a Department of Transportation issued rule that limits the number of seatbelts auto manufacturers can be required to install in vehicles

AND then prohibits suits for injuries and losses suffered if a passenger is hurt as a result of not having an available seatbelt; currently, the Office of Management and Budget, together with the Federal Railroad Administration is seeking to add federal preemption into a tank car rule; and the Food and Drug Administration has extensively tried to enact rules that would prevent patients and consumers from bringing claims when harmed by drugs that have been “approved” by the FDA. A rule was entered that requires manufacturers to make mattresses that burn more slowly, but also prohibits a person injured in a mattress fire from bringing a claim against the manufacturer. Similarly, rules require railroad car manufacturers to use stronger materials and construction efforts, but prevent a suit if a railcar catches fire.

All in all, consumers are being told, essentially, “trust the government, we will keep a watchful eye on the corporations that manufacture the products you buy.” Unfortunately, time and time again, it has been proven that the federal bureaucracy is not capable (due to lack of funds and lack of personnel, if not due to allegiance to the corporations that fund political campaigns) of adequately protecting all consumers; however, if you are injured the federal agencies have decided that you are not entitled to investigate or seek a review of the manufacturing process that may well have caused your injury.

Source: Mundy, A., “Bush Rule Changes Could Block Product-Safety Suits” Wall Street Journal, October 15, 2008