Con law: Federalism

con-law-federalism

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The federal Food and Drug Safety Act (FDSA) includes a preemption clause providing that “[n]o requirement based on health and safety shall be imposed under State law with respect to the advertising or promotion of prescription drugs.” Eli Lilly (a pharmaceutical company) advertises that its Cialis drug (for erectile dysfunction) is safe for most men but warns: “Contact your doctor or seek emergency medical attention if your erection is painful or lasts longer than 4 hours. A prolonged erection can damage the penis.” A man takes Cialis and sustains an erection lasting much longer than usual. Right at the four-hour mark, he visits his doctor’s office and is devastated to learn that his penis has already sustained long-term damage. The man brings a state common-law tort action in federal court for negligence on the theory that Eli Lilly failed to exercise reasonable care when it designed and tested Cialis. Eli Lilly moves to dismiss, alleging that the FDSA preempts the suit. Is a court likely to rule that the FDSA preemption clause preempts this suit?

Select the correct answer(s).

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Explanation

a. Yes, because the state and federal laws both aim to protect health and safety in advertising. WRONG. This is a tricky question, and probably harder than what I’d ask on the midterm, but it introduces an important point. The operative language of the statute is “based on,” so you should be thinking about this being similar to preemption principles in Cipollone and Altria. Under these principles, we should ask: Is the state negligence rule aimed at health and safety? Maybe so! But however we respond, this choice is still wrong. Why? Because the plaintiff’s claim is all about the design of Cialis—not about advertising. The federal statute only preempts “with respect to the advertising or promotion of prescription drugs,” and this claim isn’t about advertising or promotion. b. Yes, because the man’s suit is premised on an injury to his health and safety. WRONG. This is wrong for the reasons mentioned above, and it’s wrong because it doesn’t track the understanding of “based on” language stated in Cipollone and Altria. In those cases, the majority asked whether the state law was aimed at health and safety—not whether the claim itself was based on health and safety concerns. c. No, so long as the federal law does not include an alternative way for the man to bring his suit. WRONG. This type of reasoning can be relevant in borderline cases, but it only operates at the margins. There isn’t a per se rule that a federal cause of action must be available before a federal statute has preemptive effect. d. No, because the suit does not fall within the terms of the preemption clause. CORRECT! The product-liability claim has nothing to do with advertising.

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The federal Food and Drug Safety Act (FDSA) includes a preemption clause providing that “[n]o requirement based on health and safety shall be imposed under State law with respect to the advertising or promotion of prescription drugs.” Eli Lilly (a pharmaceutical company) advertises that its Cialis drug (for erectile dysfunction) is safe for most men but warns: “Contact your doctor or seek emergency medical attention if your erection is painful or lasts longer than 4 hours. A prolonged erection can damage the penis.” A man takes Cialis and sustains an erection lasting much longer than usual. Right at the four-hour mark, he visits his doctor’s office and is devastated to learn that his penis has already sustained long-term damage. The man brings a state common-law tort action in state court for negligence on the theory that Eli Lilly failed to exercise reasonable care by copying Pfizer’s claim about seeing a doctor after four hours without ensuring that its warning was accurate. Eli Lilly moves to dismiss, alleging that the FDSA preempts the suit. Is a court likely to rule that the FDSA preemption clause preempts this suit?

Select the correct answer(s).

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Explanation

a. Yes, because the state and federal laws both aim to protect health and safety in advertising. CORRECT. This is tricky. The state law—negligence—creates a duty that aims at protecting the health and safety of consumers. The particular state interest that is being protected in this case, in other words, is that drug companies take reasonable care with respect to their advertising claims. Why? Because of health and safety! So the state law as applied in this case aims at health and safety. This scenario is like the “warning neutralization” issue in Cipollone, where the court recognized that the state interest was health and safety, not simply an interest in not being defrauded. b. Yes, because the man’s suit is based on an injury to his health and safety. WRONG. See 5.2(b) above. c. No, so long as the federal law does not include an alternative way for the man to bring his suit. WRONG. See 5.2(c) above. d. No, because the suit does not fall within the terms of the preemption clause. WRONG. See answer choice (a). Note: This is a really challenging question.

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The federal Food and Drug Safety Act (FDSA) includes a preemption clause providing that “[n]o requirement based on health and safety shall be imposed under State law with respect to the advertising or promotion of prescription drugs.” Eli Lilly (a pharmaceutical company) advertises that its Cialis drug (for erectile dysfunction) is safe for most men but warns: “Contact your doctor or seek emergency medical attention if your erection is painful or lasts longer than 4 hours. A prolonged erection can damage the penis.” A man takes Cialis and sustains an erection lasting much longer than usual. Right at the four-hour mark, he visits his doctor’s office and is devastated to learn that his penis has already sustained long-term damage. The man brings a state common-law tort action in state court for fraudulent advertising on the theory that Eli Lilly knew that men could sustain serious harm for erections last more than three hours. Eli Lilly moves to dismiss, alleging that the FDSA preempts the suit. Is a court likely to rule that the FDSA preemption clause preempts this suit?

Select the correct answer(s).

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Explanation

a. Yes, because the state and federal laws both aim to protect health and safety in advertising. WRONG. See answer choice (d) below. b. Yes, because the man’s suit is based on an injury to his health and safety. WRONG. See 5.2(b) above. c. No, so long as the federal law does not include an alternative way for the man to bring his suit. WRONG. See 5.2(c) above. d. No, because the suit does not fall within the terms of the preemption clause. CORRECT. This scenario is just like Altria and Cipollone. Here, the preemption clause uses the “based on” language, so the analysis will likely track the Court’s analysis in Altria and Cipollone. As the Court held in Altria, state anti-fraud rules do not aim at health and safety, and therefore they are not expressly preempted by a federal statute that preempts only state requirements “based on health and safety.”

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The federal Internet Liability Act (ILA) provides a federal cause of action for defamation, threats, harassment, copyright violations, trademark infringements, and fraudulent or misleading advertising that occur on the Internet. The ILA includes a preemption clause providing that “[n]o state may enforce any state law related to trademark violations on the Internet.” A bright and enterprising business-school student named Bart Simpson recognizes an opening in the “fake news” industry and starts a website under the name “BrightBart News.” In response, the Breitbart News Network (Breitbart), which runs a sensationalist far-right website that frequently traffics in false and misleading stories, sues Simpson for state common-law fraud. Breitbart claims that the Brightbart News moniker is “designed to deceive Breitbart’s readership, who usually come to our website because they are easily misled.” Simpson moves to dismiss the suit, alleging that the ILA preempts the suit. Is a court likely to rule that the ILA expressly preempts this suit?

Select the correct answer(s).

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Explanation

a. Yes, because the ILA provides for fraud and trademark causes of action. WRONG. The question is whether the ILA “expressly preempts this suit,” which turns on the language of the preemption clause. This answer choice, however, only tells us something about other parts of the ILA—not the preemption clause. b. Yes, because the preemption clause is broad enough to cover state fraud actions that are based on misleading branding. CORRECT. First, the statute uses the “related to” language, suggesting broad preemptive effect, rather than the more limited “based on” language that was at issue in Cipollone and Altria. Second, the state interest in applying trademark rules and the state interest in applying anti-fraud rules are basically the same—both types of state laws basically are doing the same thing: ensuring that businesses don’t engage in misleading behavior and that consumers aren’t confused. So the suit might even have been preempted if the statute had used the more restrictive “based on” language. c. No, because the preemption clause only mentions trademark, not fraud. WRONG. See answer choice (b) above. The preemption clause is not limited to state trademark actions. It applies to “state law[s] related to trademark…” d. No, so long as Breitbart can prove that the BrightBart name is misleading. WRONG. This answer choice goes the merits of the fraud claim, not whether it is preempted.

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The federal Motor Carrier Act (MCA) imposes a variety of regulations on motor carriers. It also includes a clause that preempts enforcement of “state laws related to a price, route, or service of any motor carrier ... with respect to the transportation of property.” Judicial precedents make clear that towing companies are considered motor carriers under the MCA. Liza’s Towing—the primary towing companies in Richmond—charges $200 for towing and then $100 per day for each day a towed car is stored on the company’s lot. Outraged by these fees, aggrieved citizens pressure the City Council to pass an ordinance that limits storage fees to $50 per day. Shortly after the ordinance went into effect, Prof. Spaulding returned from a trip to South Korea to find that Liza’s Towing had towed his car soon after he parked it at the airport. The company had stored his car for 5 days. When Prof. Spaulding arrived to retrieve the car, the business manager demanded a $700 payment. Prof. Spaulding then sued Liza’s Towing in state district court, claiming that it had violated the City ordinance. Liza’s Towing alleged that MCA preempted the ordinance. Is a court likely to rule that the MCA expressly preempts this suit?

Select the correct answer(s).

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Explanation

a. Yes, because the ordinance relates to the rates charged by motor carriers. WRONG. This actually isn’t a bad answer at all (and you shouldn’t be concerned if you got it wrong). Under a very broad understanding of “related to,” there’s a good argument that the ordinance is preempted. But the Supreme Court had a recent case—Dan’s City Used Cars, Inc. v. Pelkey (2013)—in which it held that a nearly identical preemption statute was limited temporally, so it didn’t apply after the transportation was complete. b. Yes, because the ordinance will interfere with the ability of the federal regulatory scheme to operate free of interference. WRONG. This question asks you about express preemption. The right answer therefore necessarily turns on how to interpret the statute’s preemption clause. This answer choice, by contrast, does not analyze the preemption clause. c. No, because the preemption clause only applies to transportation rates, not storage rates. CORRECT. As noted above, the Supreme Court recently interpreted a nearly identical preemption clause to have preemptive effect that was limited to transportation, not storage. d. No, because the ordinance is not a “state law.” WRONG. When a preemption clause applies to “state laws,” courts will read the clause as being applicable to local ordinances, too.

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A federal law - the Auto-Sales Fraud Act -- provides: "Fraud by car salesmen is an urgent national problem that substantially affects interstate commerce. Therefore, every state government shall develop and administer a program to reduce fraud by car salesmen." Is the AFSA Constitutional?

Select the correct answer(s).

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Explanation

Even though there is a substantial affect on interstate commerce, there is a negative restriction on Congress's ability to exercise power under the Commerce Clause (the anti-commandeering doctrine).

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A federal law -- the Safer Skies Initiative -- provides that any state-run airport that accepts a federal "safer skies" grant, which generally provides a one-time $1 million grant, must use the grant money to upgrade the radar technology at the airport.

Select the correct answer(s).

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Explanation

It creates a valid condition on the receipt of federal funds.

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A federal statute -- the Tobacco Labeling Act -- provides that, "in order to deter smoking and to warn consumers," cigarette packages must include a large warning saying : "TOBACCO KILLS." The TLA also provides an extensive set of "fine print" labeling requirements, such as particular health-hazard warnings (lung cancer, throat cancer, etc.) and the chemical composition of the cigarette (nicotine levels, tar levels, etc.). Virginia passes a statute -- the Cigarette Preservation Act -- providing that, "in addition to any federal requirements," cigarette sold in Virginia must include a label saying: "BUT TOBACCO ACTUALLY DOESN'T KILL THAT MANY PEOPLE." Is a court likely to find the state law (the CPA) the be legally valid?

Select the correct answer(s).

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A federal statute -- the Anti-Addiction Act -- provides, "all cigarette sold in the United States shall contain 10 milligrams of nicotine or less per cigarette.e." The statute then creates a private right of action, providing that "any tobacco company violating this act shall be liable in state court for damages of $100 per cigarette." Is the statute constitutional.

Select the correct answer(s).

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Explanation

This is a commercial activity, the nexus to commerce requirement has to do with non-commercial activity. State courts can be commandeered to hear federal claims.

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A federal law -- the Veterans Appreciation Act -- provides that every state that chooses to receive federal highway funds must create a museum to celebrate "the accomplishments and patriotism of American military veterans." A state challenges the constitutionality of the Act. Is a court likely to conclude that the Act is constitutional.

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Explanation

The government is trying to leverage a program which creates an unconstitutional conditions problem. Highway funds are not related to honoring the military, so the condition is not germane.

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A federal law -- the Lead Reduction Act -- provides a comprehensive set of rules to limit the harmful effects of lead poisoning, with a state goal of eradicating most lead products from traveling in or affecting interstate commerce. In relevant part, the Act imposes a $500 fine on any person who knowingly possess or uses gasoline with greater than 10 micrograms of lead per gallon ("lead gasoline"). It also expressly preempts any state gasoline laws that allow for the possession or use of lead gasoline. Mowing his lawn one day, a homeowner is cited and fined under the Act for knowingly using gasoline with 12 micrograms of lead per gallon. The homeowner claims that the Act is unconstitutional "as applied" to his conduct. Is a court likely to uphold the fine?

Select the correct answer(s).

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Explanation

Court is not limiting the scope of the commerce clause based on an "as applied" theory. Wickard court: aggregate effects test.

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A federal law -- the Gun Safety Act -- provides, in part, that "it shall be a crime for any felon to possess a firearm that has traveled in interstate commerce." A felon prosecuted for violating the GSA challenges its constitutionality. Is a court likely to decide that the GSA is constitutional.

Select the correct answer(s).

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The majority in Lopez said that Commerce Clause doctrine...

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Explanation

Commerce Clause doctrine is frequently one of degree rather than one of clarity. Lopez limits the substantial effects mode of upholding congressional acts when there is intrastate non-commercial activity, no nexus to commerce requirement, and it is not necessary to a broader regulatory scheme.

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A federal statute -- the Help Our Farms Act -- provides that states may choose to receive a federal block grant for agricultural assistance. Any state that elects to receive a block grant must use at least half the funds for "local sustainability" projects. HOFA lists four options for these projects. One option is a "local sourcing" program that uses tax subsidies to encourage businesses to buy farm products within 100 miles. North Carolina accepts a federal agricultural-assistance block grant and create a HOFA-compliant "local sourcing" program. A hog farmer in Virginia who had been selling his hogs to butchers in North Carolina then challenges the North Carolina program, claiming that it unconstitutionally discriminates against out-of-state commerce. Is a court likely to conclude that the North Carolina program is constitutional?

Select the correct answer(s).

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Explanation

There is a federal statute saying that NC can create a local sourcing program. Congress can always step in and make the dCC go away by authorizing states to act in a particular away including by authorizing states to discriminate against out-of-state activities.

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A Virginia statue provides: "In order to promote economic growth, any private business operating in Virginia must purchase at least half of its supplies from companies incorporated in Virginia." Is the Virginia statute legally valid?

Con law: Federalism

Question 1 of 1

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A federal law - the Auto-Sales Fraud Act -- provides: "Fraud by car salesmen is an urgent national problem that substantially affects interstate commerce. Therefore, every state government shall develop and administer a program to reduce fraud by car salesmen." Is the AFSA Constitutional?

Select the correct answer(s).

(0/0)

Explanation

A federal law -- the Safer Skies Initiative -- provides that any state-run airport that accepts a federal "safer skies" grant, which generally provides a one-time $1 million grant, must use the grant money to upgrade the radar technology at the airport.

Select the correct answer(s).

(0/0)

Explanation

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Explanation

A federal law -- the Gun Safety Act -- provides, in part, that "it shall be a crime for any felon to possess a firearm that has traveled in interstate commerce." A felon prosecuted for violating the GSA challenges its constitutionality. Is a court likely to decide that the GSA is constitutional.

Select the correct answer(s).

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The majority in Lopez said that Commerce Clause doctrine...

Select the correct answer(s).

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Explanation

Select the correct answer(s).

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Explanation

A Virginia statue provides: "In order to promote economic growth, any private business operating in Virginia must purchase at least half of its supplies from companies incorporated in Virginia." Is the Virginia statute legally valid?

Select the correct answer(s).

(0/0)

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