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Called “silent tort-reform” by plaintiffs’ attorneys, the Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA), and National Highway Traffic Safety Administration (NHTSA) have declared that consumers cannot sue the manufacturers of products that met the agency’s standards even if an injury was incurred. This silent tort reform is part of the tension between state and federal law. When these laws do clash, according to Article 6 of the Constitution, states’ laws must give way to federal laws. In issues where there is no federal law, however, federal courts must defer to the laws of the state in which the issue is heard.  This includes product liability.


            The federal agencies are claiming, in their preambles, that their rules can override state product-liability laws since they are considered the rule-makers. The agencies believe that whenever a federal agency states its opinion on a matter, a jury should not second-guess it since they are the authority on the matter. This decision is angering many plaintiffs’ attorneys and consumer groups. Experts predict these preambles could lead to the displacement of common law as a matter of course and could also lead to many competing or conflicting state regulations.


In the past few months, federal agencies have issued dozens of rules that shield drug and other product manufacturers from liability. For example, the CPSC approved new mattress flammability standards and will not allow states to pass laws that would make the standards even stricter. Courts cannot rule a mattress caught fire because it was not safe enough. A consumer’s right to sue a manufacturer is being seriously undermined with these new rules.

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