Industry-Funded Think Tank Organizing for Preemption

A correspondent from Harvard warns that deregulatory zealots affiliated with the conservative American Enterprise Institute are circulating an unidentified amicus brief in the Supreme Court case of Wyeth v. Levine, which will be heard next fall and could result in federal drug regulations preempting state product liability laws. If the court rules in favor of Wyeth, it would remove the public's right to file suit in state courts whenever the Food and Drug Administration fails to protect consumers from unsafe drugs, such as happened in the Vioxx, Trasylol, Paxil and all too many other cases.

According to the brief's abstract:

Fundamental principles of economics and numerous studies of FDA drug regulation reveal that FDA in fact errs on the side of overregulation of prescription drugs. Product liability litigation focused solely on one side of the prescription drug public health equation leads to further distortions of the drug approval and labeling process and exacerbates FDA's inherent overly cautious approach. Preemption of state tort law where it conflicts with FDA requirements will minimize these distortions and thereby maximize public health.

The brief's authors are seeking additional signatories from the academic community. The lead author is John Calfee, who isn't identified on the brief, but is a drug industry-funded scholar at AEI. Another author is Robert W. Hahn, who is only identified as associated with the Reg-Markets Center. That group is also affiliated with AEI (it used to be a joint project with Brookings, but the mildly liberal wing of the consortium dropped out). The Center is largely funded by conservative think tanks and major corporations, including several major pharmaceutical firms.

Are any consumer groups writing and circulating briefs? If so, send me a link and I'll be glad to invite any academics who read this blog to get in touch about signing on.