Following the Supreme Court’s influential decision in Geier v. American Honda, the National Highway Traffic Safety Administration (NHTSA) has claimed that a number of new federal safety standards preempt state tort law. Meanwhile, auto manufacturers have attempted to convince state courts to dismiss lawsuits filed by injured motorists, claiming that the suits are impliedly preempted by existing safety standards. If federal courts start accepting these arguments on a broad scale, consumers will be deprived of the important protections provided by state common law.

The Center for Progressive Reform’s report, The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety, published in September 2007, presents an overview of the preemption movement that has taken root in federal regulatory agencies. It recounts how the Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission have led a government-wide initiative to claim that new regulatory standards preempt state tort law, regardless of the background law. That paper provides background information on the constitutional underpinnings of the preemption doctrine and a brief history of the Supreme Court’s preemption analysis.