Misbegotten Preemptions

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Science  02 May 2008:
Vol. 320, Issue 5876, pp. 585
DOI: 10.1126/science.1159568

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The notion of preemption has a long history in relation to the U.S. Food and Drug Administration (FDA). Its primary significance had to do with the Commerce clause in the Constitution, which (along with the Supremacy clause) gives the federal government power to regulate commerce between the states. When I was commissioner of the FDA in the late 1970s, my colleagues and I rather liked preemption. Suppose, for example, a state decided to set its own net weight requirements for packaged foods so as to favor its own manufacturers. Well, just because it wanted to disfavor out-of-state competition, it wouldn't be allowed to. Similarly, if it wanted to establish its own drug approval agency, that would also be preempted by the FDA's authority.