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 business-unfriendly 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.