Nobody seemed surprised. There were inklings during the presidential campaign as the plaintiffs' bar affirmed its support of Barack Obama. Then came the Supreme Court's March decision rejecting pre-emption in the game-changing Wyeth v. Levine, followed the very next day by legislation Rep. Frank Pallone Jr., D-N.J., introduced, aimed at overturning the high court's decision in Riegel v. Medtronic by retroactively barring pre-emption for all litigation involving medical devices from 1976 to the present.
But on May 20, President Obama officially heralded in the next chapter in the ongoing debate over federal pre-emption by issuing a memorandum clarifying his administration's position. Federal agencies can pre-empt state laws, he wrote--but only when there's a sufficient legal basis for such displacement.
The largest potential headache companies face is the notion they must comply with regulations across the 50 states rather than an overarching rule handed down from a federal agency.