Federal agencies now regulate the manufacture, design, and labeling of hundreds of consumer products. For example, the Consumer Product Safety Commission promulgates "consumer product safety standards" for a number of consumer products. Likewise, the National Traffic and Motor Vehicle Safety Act of 1966 authorizes the National Highway Transportation Safety Administration to develop safety standards for automobiles and other motor vehicles. Additionally, the Food and Drug Administration (FDA) exercises extensive control over prescription drugs, biologics, medical devices, and over-the-counter drugs. The FDA also regulates food labeling.6 Finally, Congress has established statutory labeling requirements for cigarettes, smokeless tobacco products, and alcoholic beverages.

Many federal product safety statutes expressly prohibit states and localities from imposing on manufacturers product safety requirements that differ from those established by federal law. These statutes obviously preempt nonconforming state and local statutes, ordinances, and administrative regulations. However, it is less clear whether they should be construed also to preempt state tort-law damage claims against manufacturers whose products meet applicable federal standards. Despite the numerous product preemption cases decided over the past five years, federal courts remain hopelessly divided on this issue.

Part II of this Article analyzes the concept of preemption and discusses the various preemption categories. Part III surveys the preemption litigation involving cigarettes, airbags, pesticides, pharmaceuticals, and medical devices. A survey of these cases suggests that most courts ignore important policy issues by applying a one-dimensional approach to preemption issues.

Part IV describes a model of statutory interpretation based on the "practical reasoning" approach developed by Eskridge and Frickey. This model treats statutory interpretation as a dynamic process in which the interpreter constructs a meaning from considerations of statutory text, legislative history, and contemporary values and policies. The author of the present Article concludes that an interpretive approach based on the Eskridge-Frickey model may lead to better results in product preemption cases than those achieved by the interpretive approaches currently employed.

In Part V, the Eskridge-Frickey practical reasoning model is applied to each of the product preemption categories mentioned above. After an evaluation of text, legislative history, and contemporary values, the author concludes that the interpretive evidence generally does not support a finding of preemption in product preemption cases.

Document Type


Publication Date

Winter 1993


Notes/Citation Information

South Carolina Law Review, Vol. 44, No. 2 (Winter 1993), pp. 187-285

Included in

Torts Commons



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