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Preemption: This defense arises whenever a federal safety standard, such as one under the Consumer Product Safety Commission, Food & Drug Administration, or other federal agency, is at issue. Under the defense of preemption, a plaintiff cannot pursue a state tort claim because it conflicts with federal law and creates a contrary safety standard.There are two types of preemption: express and implied. Express preemption arises when a federal statute or regulation expressly states that no state claims are permitted under the law. This type of preemption is rare because state tort law is viewed as complementary to federal safety regulation in most cases. Implied preemption is more common and has been the subject of the most 156of the cases your professor might present on this topic. Implied preemption arises from a potential conflict between a federal standard and a standard under state law. For example, a federal requirement that a cigarette manufacturer had to place a warning on cigarette packets was found to pre-empt a failure to warn claim, but not an express warranty claim under contract law. See Cipollone v. Liggett Group, 505 U.S. 504 (1992). In addition, a federal requirement that air bags were optional during a particular time period was held to preempt a design defect claim for harms caused by a car that did not have an air bag during the period when they were optional. See Geier v. American Honda Motor Co.,529 U.S. 861 (2000). When a state claim imposes a standard that conflicts with a federal standard, the federal standard trumps.Preemption can be a very complicated analysis because it requires a careful attention to federal statutes and to state tort law. Break down the preemption analysis into the following steps. First, see if the federal statute or regulation expressly states that no state tort claim can be brought. If there is express language, then there is express preemption. Second, see if the federal statute or regulation defines a safety standard. If it does, then ask whether the state tort claim imposes a standard that conflicts with the federal standard. If the state claim does, then the federal standard trumps, and the plaintiff cannot bring the state claim.
Also, make sure you understand the difference between the defense of preemption and the use of statutes to establish negligence per se in a negligence claim. Here are the principal differences. First, preemption applies to all tort claims, whether brought under negligence, strict liability, or intentional torts. The use of statutes for negligence per se applies only in a negligence claim. Second, preemption is a defense that dismisses a plaintiff’s claim. The use of a statute establishes breach as a matter of law in a negligence claim and therefore is part of a plaintiff’s case. In some jurisdictions, the use of a statute is evidence of breach and therefore serves as evidence in a negligence case. Preemption, however, is a defense in every jurisdiction.