It’s not exactly drugs/devices, but it’s food (which is close), and it’s preemption, and it’s the Supreme Court, so we thought we’d let you know. There’s a pending cert. petition called National Meat Ass’n v. Brown, No. 10-224. One of the questions presented, which attracts our attention, is:

Did the Ninth Circuit err in holding that a “presumption against preemption” requires a “narrow interpretation” of the FMIA’s express preemption provision, in conflict with this Court’s decision in Jones v. Rath Packing Co., 430 U.S. 519, 540 (1977), that the provision must be given “a broad meaning?

As the docket indicates, the Court recently (on 1/18/11) invited the SG’s office to file a brief stating the government’s views. Our readers interested in preemption might want to watch for that – we will.

The facts, we must admit, are not ones we’re particularly happy with, as they involve “Mad Cow Disease” prophylactic measures (what to do with “nonambulatory” cattle), and whether a state statute that’s stronger than current federal law is preempted. Like radiation (remember Silkwood), bovine spongiform encephalitis is “scary” to the public, and that’s probably not helpful to the pro-preemption side.

Thanks to Mike Imbroscio at Covington for the tip.

Citation

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