Contact: Jennifer Fuson
202.965.3500, ext. 8369
Midnight Regulation Watch: Bush Administration Gives Gift that Keeps on Giving—Corporate Immunity for NegligenceAAJ: Delay in NHTSA’s Roof Crush Standard Gives Obama Administration Opportunity to Protect Consumers
Washington, DC—The American Association for Justice (AAJ) continues to watch for last minute regulations that could weaken consumer safety protections and limit the ability to hold manufacturers responsible for defective and harmful products. Regulations published in the Federal Register this week could have 30 days to take effect before Bush leaves office on January 20, 2009.
The Administrative Procedure Act allows any new administration to stay any final rules that have been put forth 60 days prior to the start of a new administration. For this reason, the Bush Administration had asked all final rules be complete on Nov. 1, 2008.
“The Bush administration has weakened consumer safety protections and put corporate profits ahead of consumer safety. We have seen it in everything from medical device rules, seatbelt and school bus safety requirements, railroad security, and prescription drug labels,” said AAJ President Les Weisbrod.
One area the Bush administration could have used as an opportunity to protect consumers is the National Highway Traffic Safety Administration’s (NHTSA) standard regarding roof crush resistance. The current standard has been in effect since 1973, well before SUVs were a popular transportation option. After years of delay, yesterday NHTSA further postponed finalizing the standard, extending the final publication deadline to April 30, 2009.
“This is a golden opportunity for the Obama Administration to show that they intend make consumer safety a priority,” added Weisbrod. NHTSA’s pending proposal of the roof crush standard only increased the ability of a roof to withstand a force equal to 2.5 times the unloaded vehicle’s weight, a standard that would still result in killing or paralyzing most passengers involved in rollover accidents.
“We hope the next administration takes the time to make a strong roof crush standard that would adequately protect consumers and ensure the right to civil justice is protected,” added Weisbrod. The pending rule also included preemption language which could have prevented consumers from seeking justice through the state tort system.
“We will continue to watch and object to rules that rollback consumer safety and limit the right to hold negligent corporations accountable through the civil justice system until the final hours of this administration,” added Weisbrod.
The Bush administration has been putting language in federal safety regulations that could prevent consumers from seeking justice through the state civil justice system. Some of the regulations that preempt state tort action have been finalized, others are still pending before the federal agencies. Below are the rules that have been finalized and are still pending, categorized by agency.
Food and Drug Administration (FDA)—Regulations finalized before 12/15/08 that include language that could preempt state tort law claims.
| Subject Matter | Citation |
| Physician labeling rule | 71 Fed. Reg. 3922 (2006). |
| Noncarcinogenic sweeteners | 71 Fed. Reg. 15559 (2006). |
| Raw fruits, vegetables, fish | 71 Fed. Reg. 42031 (2006). |
| OTC nasal medication | 71 Fed. Reg. 43358 (2006). |
| Calcium | 72 Fed. Reg. 497 (2007); 73 Fed. Reg. 56477 (2008). |
| Nutrient content claims | 72 Fed. Reg. 1455 (2007). |
| OTC dandruff products | 72 Fed. Reg. 9849 (2007). |
| OTC laxatives | 72 Fed. Reg. 14669 (2007). |
| Dietary sweeteners | 72 Fed. Reg. 52783 (2007). |
| OTC contraceptives | 72 Fed. Reg. 71769 (2007). |
| Skin protectant drug products | 73 Fed. Reg. 6014 (2008). |
| Soluble fiber (coronary heart disease) | 73 Fed. Reg. 9938; 73 Fed. Reg. 23947 (2008). |
| Toll-free number for reporting adverse events on labeling for human drug products | 73 Fed. Reg. 63886 (2008). |
| **Supplemental application labeling rule | 73 Fed. Reg. 2848; 73 Fed. Reg. 49603 (2008). |
FDA—Pending rules that include language that could preempt state tort law claims as of 12/15/08.
| Subject Matter | Citation |
| Skin bleaching products | 71 Fed. Reg. 51146 (2006). |
| OTC drugs in trial size packages | 71 Fed. Reg. 74474 (2006). |
| OTC analgesics | 71 Fed. Reg. 77314 (2006). |
| Sunscreen products | 72 Fed. Reg. 49070 (2007). |
| Fatty acids | 72 Fed. Reg. 66103 (2007). |
| Pregnancy and lactation labeling | 73 Fed. Reg. 30831 (2008). |
National Highway Traffic Safety Administration (NHTSA) —Regulations finalized before 12/15/08 that include language that could preempt state tort law claims.
| Subject Matter | Citation |
| Door locks and door retention components | 72 Fed. Reg. 5385 (2007). |
| Electronic stability control | 72 Fed. Reg. 17236 (2007); 73 Fed. Reg. 54526 (2008). |
| Head restraints | 72 Fed. Reg. 25483 (2007). |
| Tire pressure monitoring | 72 Fed. Reg. 38017 (2007). |
| Occupant crash protection | 72 Fed. Reg. 40252 (2007). |
| Side impact protection | 72 Fed. Reg. 50900 (2007). |
| Side impact (electric cars) | 72 Fed. Reg. 51908 (2007). |
| Power-operated windows | 73 Fed. Reg. 38338 (2008). |
| Lamps and reflective devices | 72 Fed. Reg. 68234 (2007); 73 Fed. Reg. 50730 (2008). |
| Occupant crash protection (update to Appendix A) | 73 Fed. Reg. 66786 (2008). |
| School bus passenger seating | 72 Fed. Reg. 65509 (2007); 73 Fed. Reg. 62744 (2008). |
| **Designated seating positions | 70 Fed. Reg. 36094 (2005); 73 Fed. Reg. 58887 (2008). |
NHTSA—Pending rules that include language that could preempt state tort law claims as of 12/15/08.
| Subject Matter | Citation |
| Roof crush resistance | 70 Fed. Reg. 49223 (2005); 73 Fed. Reg. 5484 (2008). |
| Rearview mirrors | 70 Fed. Reg. 53753 (2005). |
| Occupant protection | 72 Fed. Reg. 54402 (2007). |
| Electric-powered vehicles | 72 Fed. Reg. 57260 (2007). |
| Brake hoses | 72 Fed. Reg. 57459 (2007). |
| Platform lifts | 72 Fed. Reg. 72326 (2007). |
| Child restraint systems | 73 Fed. Reg. 3901 (2008). |
| Windshield zone intrusion | 73 Fed. Reg. 38372 (2008). |
| Occupant crash (remove sunset provision) | 73 Fed. Reg. 52939 (2008). |
| Motorcycle brake systems | 73 Fed. Reg. 54020 (2008). |
| Motorcycle helmets | 73 Fed. Reg. 57297 (2008). |
Federal Railroad Administration (FRA) —Regulations finalized before 12/15/08 that include language that could preempt state tort law claims.
| Subject Matter | Citation |
| Railroad operating standards | 71 Fed. Reg. 60372 (2006); 73 Fed. Reg. 8441 (2008). |
| Continuous welded rail | 71 Fed. Reg. 59677 (2006). |
| Electronically controlled pneumatic brakes | 72 Fed. Reg. 50820 (2007); 73 Fed. Reg. 61512 (2008). |
FRA—Pending rules that include language that could preempt state tort law claims as of 12/15/08.
| Subject Matter | Citation |
| Passenger safety equipment standards | 72 Fed. Reg. 42016 (2007). |
| Incident reporting requirements | 73 Fed. Reg. 52496 (2008). |
| Continuous welded rail (inspections) | 73 Fed. Reg. 73078 (2008). |
Consumer Product Safety Commission (CPSC) —Regulation finalized before 12/15/08 that includes language that could preempt state tort law claims, addressed in CPSC reform.
| Subject Matter | Citation |
| Mattress flammability | 70 Fed. Reg. 2470 (2005); 71 Fed. Reg. 13472 (2006). |
Pipeline Hazardous Materials Safety Administration—Pending rules that include language that could preempt state tort law claims as of 12/15/08.
| Subject Matter | Citation |
| Crashworthiness protection of rail cars (joint rule with FRA) | 73 Fed. Reg. 17818 (2008). |
| Enhancing rail transportation security (joint rule with FRA) | 73 Fed. Reg. 20752 (2008). |
Department of Homeland Security—Pending rules that include language that could preempt state tort law claims as of 12/15/08.
| Subject Matter | Citation |
| Chemical facility anti-terrorism | 71 Fed. Reg. 78276 (2006); 72 Fed. Reg. 17688 (2007). |
| ** Rail transportation security- (Transportation Security Agency) | 71 Fed. Reg. 76852 (2006); 73 Fed. Reg. 72130 (2008). |
** Indicates preemption language is in the final text of the rule, not just the preamble text language.
