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The week in Congress: Preemption is awful, except...



The major legislation in Congress this week with sweeping implications for business and the litigation crowd is H.R. 1256, the Family Smoking Prevention and Tobacco Control Act, i.e., FDA regulation of tobacco. The Senate debates the bill today, with a cloture vote pending.

Mark Berlind, a partner at A.T. Kearney, essays a critique of the legislation in today's Wall Street Journal, "Tobacco and the Tort Bar," commenting, "Antitobacco activists are cheering, while some tobacco companies are raising the specter of First Amendment violations. Lost in the debate is the fact that this bill will continue to allow consumers to sue manufacturers that fully comply with the FDA's content and labeling rules."

There are other items of interest in Congressional committee rooms this week, including a hearing Tuesday by the House Judiciary Committee, Subcommittee on Commercial and Administrative Law, on H.R. 1521, the Cell Tax Fairness Act. As the CRS summary puts it, the bill: "Prohibits states or local governments from imposing any new discriminatory tax on mobile services, mobile service providers, or mobile service property for five years after the enactment of this Act. Defines 'new discriminatory tax' as a tax imposed on mobile services, providers, or property that is not generally imposed on other types of services or property, or that is generally imposed at a lower rate."

The bill was introduced by Rep. Zoe Lofgren (D-CA) and has 112 cosponsors from both parties, including opponents of federal preemption in other contexts.

Lofgren herself condemned the EPA's refusal under President Bush to grant a California waiver to allow the state to regulate motor vehicle emissions to limit greenhouse gases. Tax policy isn't regulatory policy, we know, but it sure seems like the views of preemption in Congress are arrived at ad hoc-ly.

On the Senate side, the Senate Judiciary Committee is scheduled to mark up several bills Thursday it did not get to last week, including H.R. 985/S. 448, Free Flow of Information Act, i.e., the federal media shield. Also on the schedule...

  • S. 417, State Secrets Protection Act, to enact a safe, fair, and responsible state secrets privilege.
  • S. 257, Consumer Credit Fairness Act, to disallow certain claims resulting from high cost credit debts, and for other purposes.
  • S.369, Preserve Access to Affordable Generics Act, to prohibit brand name drug companies from compensating generic drug companies to delay the entry of a generic drug into the market.

Also, the Homeland Security and Government Affairs Committee holds a hearing Thursday on S. 372, The Whistleblower Protection Enhancement Act, to expand protections for federal employees. (House version is H.R. 1507.)

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.