Magazine | May 4, 2009, Issue

Letters

We’re Warning You

In “The Week” (April 6), the Editors take issue with the Supreme Court’s ruling in Wyeth v. Levine. The Court held that when a drug harms a patient, the patient can sue in a state court, even if the drug’s maker followed the Food and Drug Administration’s guidelines — in other words, FDA guidelines don’t “preempt” state-level laws and lawsuits. The Editors also express a desire for a national standard governing warning labels on drugs.

But the case was rightly decided as a legal matter. While Congress has the power to preempt state laws having to do with interstate commerce — a power that the modern Supreme Court has interpreted broadly enough to cover drug labeling — in this instance it declined to do so. We imagine the Court would uphold a labeling law explicitly barring states from setting their own, stricter rules, as it did in the case of a pesticide statute decades ago. But unless such language is in the law, there’s nothing to keep a state from legislating on how drugs sold within its borders should be labeled.

Further, let us wonder why the Editors would ask for a national standard in drug labeling. Vermont might well create a poor, unworkable, and businessunfriendly standard for tort liability, but that’s (mainly) Vermont’s problem. Neither Wyeth nor any other drug company is required to sell its products there, and the people of the other 49 states are free to reject Vermont’s model as they please. Also, who’s to say that Washington won’t create a poor, unworkable, and business-unfriendly standard? The FDA is already setting a floor for what an adequate warning label is; do we also want the federal government setting the ceiling?

National Review typically does a fine job of defending federalism and subsidiarity, making arguments for a smaller federal government and for allocating power close to home, but on this issue the Editors have departed from that practice.

Andrew Fink (uncle)

Whitehall, Mich.

Andrew Fink (nephew)

Ypsilanti, Mich.

The Editors reply: We appreciate the kind words and the thoughtful letter, but we disagree. The Finks underestimate the extent to which the states have encroached on national commerce. The pharmaceutical company cannot avoid Vermont tort law if it has even minimal contacts with the state: if it sells other products there, or someone uses its product there. We respect subsidiarity, but sometimes the federal government is the smallest unit of government that can accomplish a necessary task — as in the case of protecting national commerce from the states. Congress, meanwhile, cannot possibly foresee and explicitly bar every creative method a rapacious state might use to undermine its laws, so the court should not require it to have done so.

 

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

In This Issue

Articles

Politics & Policy

A Recession’s Import

Much unnecessary confusion arises from using such phrases as “housing crisis” and “financial crisis” to mean “recession.” That confusion is compounded by wrongly equating the phrase “financial crisis” with the ...
Politics & Policy

Social Security Myths

‘When something is unsustainable,” so goes the aphorism, “it tends to stop.” Usually invoked about tangible phenomena, the old saw is equally true about unsustainable arguments. If a conception is ...
Politics & Policy

Cruz Control

Following two brutal election cycles, Republicans are adrift and nearly everyone fingers the same fundamental problem with the party: lack of leadership. Even Democrats have had trouble choosing an elected ...

Features

Politics & Policy

Mortal Remains

There is a stock character in fiction, particularly science fiction, who might be called the Immortal. Whether he be vampire or angel, alien or just some everyman blessed — or ...

Books, Arts & Manners

Politics & Policy

Western Civ

When the Reagan Ranch went up for sale in 1996, Nancy Reagan left behind most of the furniture and linens but removed a number of personal items. She didn’t want ...
Politics & Policy

Trail Blazer

We live in the age of the full disclosure, so I am obliged to issue one about this biography of Cosmopolitan magazine’s legendary editor: I’m in it. Commenting on Helen Gurley ...

Sections

Politics & Policy

Letters

We’re Warning You In “The Week” (April 6), the Editors take issue with the Supreme Court’s ruling in Wyeth v. Levine. The Court held that when a drug harms a patient, ...
Politics & Policy

The Week

‐ Bo joins the ranks of famous White House hounds: Barney, Checkers, Bill . . . ‐ Three Somali pirates found out the hard way that the most dangerous thing in ...
The Long View

Larry King Live!

Transcript: April 12, 2010 LARRY KING: Tomorrow night! Ryan Seacrest and last year’s American Idol! From Edmund, Oklahoma, hello! CALLER: Hi Larry. I just wanted to know if your guest has any ...
Politics & Policy

Poetry

TRINITY I saw a small boy on a back lot in New York, Crouched, burning flies alive in a sealed jar With a magnifying glass he held up high, Focusing the fire of our ...
Happy Warrior

Helium Diplomacy

At the Royal Opera House in Covent Garden, they’re premiering a new ballet about a young French boy who’s befriended by a giant helium-filled balloon. Any balletomanes at the U.S. ...

Most Popular

Politics & Policy

Hillary Ruins the Plan

Editor’s note: Andrew C. McCarthy’s new book is Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency. This is the first in a series of excerpts.  There really was a collusion plot. It really did target our election system. It absolutely sought to usurp our capacity for ... Read More
Culture

An Insider’s Guide to Italian Insults

The tragicomic irony of Chris Cuomo’s pugilistic outburst earlier this week — cursing and physically threatening a man for taunting him with a reference to the movie The Godfather — is that the CNN anchor reinforced the usual tropes about Italian Americans. We are all wise-guys, goons, and Mafiosi, just ... Read More
Religion

Another Pop-Culture Christian Loses His Faith

It’s happened again. For the second time in three weeks, a prominent (at least in Evangelical circles) Christian has renounced his faith. In July, it was Josh Harris, a pastor and author of the mega-best-selling purity-culture book I Kissed Dating Goodbye. This month, it’s Hillsong United songwriter and ... Read More
World

The End of Hong Kong as We Know It

The protests in Hong Kong have been going on for more than four months now, and no matter how the current crisis concludes in the coming days or weeks, it will mark the end of Hong Kong as we know it. The protests started in response to an extradition bill that was proposed by the city’s Beijing-backed ... Read More
Economy & Business

The Great Mystery

Kevin Williamson disputes my characterization of his riposte. He writes: I wrote that people can choose what kind of work they want to do, and what kind of services they want to consume, without any help from Michael. Kevin then accuses me of being a stouthearted defender of the “Real America.” If ... Read More