What is Preemption?

Questions of preemption may pop up in a lawsuit when federal and state laws come into conflict. The preemption doctrine determines which authority wins.

Topic Overview

Preemption is a legal term of art, meaning it has a specialized meaning when used in the context of the law. In legal contexts, preemption is the concept that a higher authority wins out against a lower one when the two conflict. In many cases, this involves situations where federal and state law deal with the same topic.

Key takeaways about preemption

• Preemption has a specific meaning when used in legal contexts such as lawsuits.
• When state and federal law conflict, federal law generally wins. Between local and state law, state law generally wins.
• Companies may present preemption as a defense in product liability lawsuits.

When does the preemption doctrine come into play?

Preemption comes into play when two legal entities have a claim to the same authority. Lawmaking bodies, courts, administrative agencies and constitutions may all come into conflict with one another. When this happens, the higher authority generally wins.

Preemption may be explicit. For example, the U.S. Congress (a federal authority) has passed laws to preempt state regulation of medical devices. But preemption can be implicit or implied. Questions of whether preemption implicitly exists in a specific case are common.

This is a complicated area of law. During lawsuits, lawyers may argue that preemption applies to some aspect of the case. They can present their arguments to judges to decide which side should prevail. This is usually an issue that arises and must be resolved before a case can go to a trial.

What laws define preemption?

Preemption finds its source in the U.S. Constitution. Article VI, Paragraph II of the Constitution is also known as the Supremacy Clause. It states that the Constitution and federal law are a higher authority than state law. The principle that higher authorities preempt lower ones comes from this statement.

In cases of explicit preemption, a law, regulation or other authority will clearly state its intention to preempt a lower authority. When preemption is implicit, legal experts have to figure out if a higher legal authority meant to preempt a lower one.

Example of a preemption question in action

Questions of preemption can get very technical. In the context of a lawsuit, preemption may come up as a defense presented by a company when the plaintiff alleges the label of the product should be different. The company will argue that preemption shields them from liability. Ultimately, it is still the responsibility of the manufacturer of the drug or device to maintain and update its label to make sure it is accurate.

For example, in a lawsuit filed by people who took its birth control product, Pfizer claims federal law prevents it from changing its product label without federal regulatory approval. Lawyers will argue the issue and a judge will decide whether Pfizer could have changed the label without violating federal law.

Our experience with state and federal law

Motley Rice has experience with lawsuits filed in state and federal court. This includes complex consolidated cases, such as state class actions and federal multidistrict litigation. Our attorneys understand the intricacies of different legal systems and how they interact.

Read more about our litigation experience.

Sources

1. Legal Information Institute. Preemption.
2. Legal Information Institute. Supremacy Clause.
3. National Constitution Center. The United States Constitution.