States rights takes another bath

Two years ago Mrs. R. and I were lucky enough to stay in a fancy European "boutique" hotel in Amsterdam. Very fancy. One might even say "precious." Lots of exclusive designer features. Nice bathroom, too, except that the water faucet spout was so close to the sink back wall the water tended to cascade down it like a waterfall. Annoying but not dangerous. Unlike the tub-shower, which was both annoying and dangerous. The only way in was by stepping into the back of the tub area, which also had a fairly steeply sloped grade, I suppose so the bubblebather could lean back on it. If you were taking a shower, however, you stepped in on this wet sloping surface, making a slip and fall much more likely.

This kind of design would be inconceivable in the US, whether you were at The Ritz or a Motel-6. Why? Liability, of course. We don't have those obviously unsafe designs in US hotels because the hotels would (rightly) get the shit sued out of them for the accidents this negligent design would cause. Europe is often compared favorably to the US because it isn't a "litigious" society. As a result, it is also a more dangerous one as regards consumer safety.

The Bush administration has done its best (and its best has been pretty good) to break the kneecap of one the important legs supporting consumer and worker safety, Federal regulation. They have also been going after the other leg, the ability of injured citizens to be compensated for negligence, carelessness or plain greed on the part of producers of unreasonably dangerous products or designs like the hotel bathtub. The euphemism for this assault is "tort reform." It is a popular Republican cause and the Congress has recently smuggled immunity for drug companies into bird flu legislation and granted outright immunity to gun makers and sellers. That they are working hand in glove with the administration is no secret, and the Bushies seem now on the verge of another big (but unnoticed) victory on drugs via a new labeling rule, soon to be unveiled. Here is how the Wall Street Journal put it:

The Food and Drug Administration is preparing to declare that federally approved medication labels pre-empt state law, a move that could strengthen pharmaceutical makers' defenses against lawsuits claiming injury by the companies' products.

The policy could help companies argue they weren't required to warn consumers about a potential risk when the FDA had determined that the safety issue didn't warrant inclusion on a medicine's label. The new policy, which would address state liability statutes, has been written into a broad new drug-labeling rule that is likely to be issued shortly, according to people with knowledge of the matter, though the rule has been repeatedly delayed. (WSJ)

The Journal goes on to say, "Product-liability suits have become a huge problem for drug makers." True, but it would be more accurate to say, "gross negligence resulting in lawsuits has become a huge problem for drug makers." Remember Vioxx? We can solve the problem in one of two ways. Stop the negligence or stop the lawsuits. Guess which one the Bush administration, the Republican congress (along with some help from a few faux Democrats like Joe Lieberman) and Big Pharma favors. Not that Big Pharma admits it. In fact, they claim they don't know anything about it yet:

Kent Jarrell, a spokesperson for Merck, said, "We really can't get into discussing language of a proposed rule that we have not seen." A spokesman for drug maker Pfizer Inc. declined to comment.

Bullshit. I'm willing to bet they've not only seen this part of the rule, but helped to write it. It is also not the only example of this strategy. Again, the WSJ:

The policy would mesh with the White House's focus on tort reform. Indeed, other federal agencies have made similar moves toward helping to shield businesses from certain forms of legal action. The National Highway Traffic Safety Administration last August proposed a new rule on car-roof strength that would grant legal protection to car makers that adhere to the safety standard. The U.S. Office of the Comptroller of the Currency issued a sweeping regulation in early 2004 that said federal banking laws take precedence over a number of state consumer-protection statutes when applied to national banks. The agency challenged an investigation of potentially discriminatory lending practices by New York Attorney General Elliot Spitzer, arguing that his probe impinged on federal enforcement turf.

Courts would not be bound by a defense invoking this labeling provision, but it hands the increasingly right wing Republican appointed judiciary yet another easy tool to deny consumers redress from negligent businesses and corporations. It also sharpens a growing argument with the states over jurisdiction.

In the case of the new FDA rule, states argue that they weren't adequately informed that it was coming. Yesterday, the National Conference of State Legislatures protested the move in a letter to Health and Human Services Secretary Michael Leavitt, calling it a "thinly-veiled attempt on the part of FDA to confer upon itself authority it does not have by statute" and an "abuse of agency process."

Then there's this monumental piece of hypocrisy by a member of the revolving-door FDA/Big Pharma superhighway:

Defenders of the FDA's pre-emption briefs have argued that they simply articulate a stance that is implicit in federal law. If state lawmakers and courts can second-guess the FDA, some drug-industry officials say, it could lead to a morass of conflicting rules and undermine the decisions of the government's most qualified experts. "You want the FDA to have the last word if you believe in the FDA's expertise," said Daniel Troy, the former FDA chief counsel who filed several of the briefs and who represents industry clients in private practice.

Yeah, right. Just like the FDA listened to their most qualified experts when it over ruled them on refusing to grant OTC status for the "morning after pill," bowing instead to the unqualified pressure of the Forced Childbirth advocates (the more aptly named activist that were formerly misnamed Right to Lifers).

Next step, dangerous Chinese bathtubs, cut priced at Wal-Mart.