Unfortunately, this post comes much too late. The Supreme Court has already upheld FDA preemption in the Riegel case (voting 8-1). That was a medical device case.

In the Levine case, which the Court will hear in October, the issue is preemption in the arena of drugs.

So it will not take individual state legislatures. The Court can eliminate civil liability of drug companies - and probably will - this Fall.

Below a recent letter of mine that was published in the NYT on this matter:

April 13, 2008
LETTER

Drug Makers’ Advantage

To the Editor:

Re “Drug Makers Near Old Goal: A Legal Shield” (front page, April 6):

There is a kind of Alice-in-Wonderland quality as the Supreme Court comes closer to affirming Food and Drug Administration pre-emption.
Every few months, another study concludes that the F.D.A. cannot fulfill even its basic responsibilities.

Until the Bush administration, the F.D.A. itself viewed civil liability and its own regulation as complementary systems of consumer protection. And yet we are about to throw one of those systems away.

Like the doctrine of pre-emptive war that led to Iraq, F.D.A. pre-emption is a policy concocted in oblivion, an ideology without connection to the ways the agency and industry actually work. The editors of The New England Journal of Medicine recently wrote that that policy would have cataclysmic consequences for patients’ rights, industry accountability and public health.

It is not often that doctors defend trial lawyers. Having now heard what the most respected voice in American medicine has to say, we should have no illusions where we are headed.

Henry Greenspan
Ann Arbor, Mich., April 7, 2008

The writer is a faculty scholar in integrative medicine, University of Michigan.

In February 2008, the Center for Justice & Democracy (CJ&D) released the report, A Tragic Blunder: Michigan's Drug Industry Immunity Law. As the report states, the Michigan Drug Industry Immunity Law is unprecedented and it prevents Michigan residents harmed by dangerous drugs from gaining access to the civil justice system. This law has been devastating for Michiganders while failing to accomplish any promised economic benefits for the state. Since the law went into effect in 1996, numerous unsafe drugs have been marketed with approval by the Food and Drug Administration that have killed or injured Michigan residents. Unlike victims in any other state in the country, Michigan residents are barred from seeking compensation for these deaths or injuries. Meanwhile, contrary to what the law's proponents promised, thousands of good paying jobs in the pharmaceutical industry have left the state.

What Michigan lawmakers accomplished with this law is exactly what the pharmaceutical industry has been trying to accomplish unsuccessfully for the last three decades in Congress and state legislatures around the country – eliminating their liability for marketing unsafe drugs, and shielding them from responsibility when their harmful products hurt or kill. This law is especially harmful since the FDA has fallen down on its job of protecting the public.
Every legislative session since the drug industry immunity law was passed, Michigan legislators have introduced legislation to repeal the law. Michigan residents have been reaching out to their elected officials, the House of Representatives passed repeal legislation in January 2007, and Governor Jennifer Granholm expressed support for repeal in her recent State of the State address.

For more information and a copy of the report visit the blog The Pop Tort More ...