In this brief article, I discuss two U.S. Supreme Court cases that allowed federal labeling laws to be overturned by states applying common law fraud concepts. In other words, the safe harbor provided to businesses that complied with the labeling laws implemented by federal regulatory agencies was cast aside. Plaintiffs were allowed to base their lawsuits on local state consumer protection laws and state application of the unwritten Common Law in order to hold the businesses liable for fraudulent or misleading labeling of their respective products. Certainly, it is not new in the U.S. for state law (to rely on a state's "police powers") to be more protective of its residents than federal law. For instance, California has always had more stringent emissions control standards than the federal Environmental Protection Agency (EPA), which has meant that auto manufacturers of foreign imports (e.g., Volvo, BMW) look to California as the standard setter--not the EPA. Certainly, allowing states to overrule federal attempts to establish uniform commercial standards throughout the U.S. is harmful to not only interstate commerce, but to global commerce as well.
Should local upstarts be allowed to sabotage the fine efforts of the federal government to promote commerce by applying common law -- a holdover from the "Old Country"?
Conference Paper Pre-empting Regulators, Empowering States, Screwing Marketin...
In Croatia as member of EU the European standards are supposed to be followed. But when it comest to numerous consumer protection and big corporate sharks hings are skiping the reach of legislation Common aswell as European Law
Thank you, Deša, for calling my attention to yet another situation in which individual member states of the EU opt out of compliance with EU standards that are inconvenient in terms of self-serving national interests. This fits nicely with my current scholarly interest in the failure of COE member states to uniformly comply with the fundamental rights and freedoms protections of the the European Convention for the Protection of Human Rights and Fundamental Freedoms. Here again, it is a case of "pick and choose" those rights and freedoms that can be granted without interfering with a state's own national agenda. Here is an RG link to one of my papers on this subject .
Gwen
Conference Paper Democracy Light: Religious Liberty in the COE Community
I personally think that here you must think outside the box and go for a rigorous line of analysis by using a method of policy analysis used in public policy. One technique used is that of 'analogy' or analogical reasoning. This is nothing new also for law students or jurists as this is the method also used when one has to interpret ambiguously worded pieces of legislation, or when it is not clear whether a particular law cannot be used within a specific context and when getting together all jurisprudence local or regional that may be probable pieces in the jigsaw, do not fit, implying that one has to look into particular 'case studies' in other sister jurisdictions, similar but not necessarily identical, that may suggest a way forward when it comes to the application of the law under which a state of facts is being scrutinized. In this case, I suggest that one must using this technique, use the 'effects' doctrine test used in anti-trust cases especially within the EU. If a particular issue effects more a particular state within the US rather than intra-state trade, and there is a conflict in law between common law and federal law, it is common law that applies. Then try to find case law which supports this view and follows this train of logic.
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