NCJ Number
57450
Journal
Arizona State Law Journal Volume: 1975 Issue: 4, Dated: (1975) Pages: 715-735
Date Published
1975
Length
21 pages
Annotation
GUIDELINES BY WHICH FEDERAL AND STATE GOVERNMENTS CAN EXAMINE THE PURPOSE AND EXTENT OF CONSUMER PROTECTION LAWS ENACTED BY COMPETING GOVERNMENTAL ENTITIES TO AID IN RESOLVING THE ISSUE OF PREEMPTION ARE DISCUSSED.
Abstract
FEDERAL CONSUMER PROTECTION ACTIVITIES ARE CONCENTRATED IN THE FEDERAL TRADE COMMISSION, ALTHOUGH ABOUT 40 FEDERAL AGENCIES PLAY SOME ROLE. MAJOR PROBLEMS HAVE ARISEN FROM THE CREATION OF SUCH AGENCIES AS THE CONSUMER PRODUCT SAFETY COMMISSION, ADDITIONAL RESPONSIBILITIES ASSIGNED TO AGENCIES SUCH AS THOSE THROUGH THE FAIR PACKAGING AND LABELING ACT, AND THE REACTIVATION OF OLD LAWS FOR THE BENEFIT OF CONSUMER GROUPS. MOST STATES HAVE ESTABLISHED CONSUMER PROTECTION BUREAUS OR DIVISIONS, AND SOME HAVE SEPARATE DEPARTMENTS OF CONSUMER AFFAIRS. RAPID GROWTH IN CONSUMER PROTECTION LAWS HAS RESULTED IN CONFLICT BETWEEN FEDERAL AND STATE REGULATIONS. THE THEORETICAL CAPACITY OF CONGRESS TO RESOLVE THE CONFLICT REMAINS UNUSED, AND INDIRECT INTERACTION BETWEEN FEDERAL AND STATE REGULATORY SYSTEMS POSES DIFFICULTIES. THE CONFLICT CAN BE PARTIALLY MITIGATED THROUGH INTERGOVERNMENTAL COOPERATION, BUT ADJUDICATION IS THE ONLY WAY OF RESOLVING CONFLICT IN MANY CASES. FOUR SITUATIONS INVOLVE FEDERAL-STATE INTERACTION IN THE CONSUMER ARENA BUT DO NOT INVOKE THE SUPREMACY CLAUSE OF THE CONSTITUTION: (1) NO PREEMPTION QUESTION EXISTS WHEN BOTH FEDERAL AND STATE AGENCIES ARE INVOLVED IN NONREGULATORY ACTIVITIES, SUCH AS GATHERING AND DISSEMINATING INFORMATION FOR THE BENEFIT OF CONSUMERS, (2) NO PREEMPTION QUESTION EXISTS WHEN A STATE REGULATION IS LESS STRINGENT THAN A FEDERAL REGULATION, (3) NO PREEMPTION ISSUE IS PRESENTED WHEN FEDERAL AND STATE STANDARDS ARE IDENTICAL, AND (4) FEDERAL AND STATE REGULATIONS MAY CONFLICT WITHOUT INVOKING PREEMPTION. PERHAPS THE CLEAREST SITUATION LEADING TO FEDERAL PREEMPTION OCCURS WHEN THE NATURE OF THE FIELD PRECLUDES ALL STATE REGULATION. WHEN THE FIELD PERMITS THE COEXISTENCE OF BOTH FEDERAL AND STATE REGULATION, COURTS MUST LOOK ELSEWHERE FOR GUIDANCE. COURTS GENERALLY PREFER CONCURRENT FEDERAL AND STATE REGULATIONS. FACTORS SUPPORTING PREEMPTION BY THE FEDERAL GOVERNMENT ARE THE PURPOSE OF FEDERAL REGULATION, THE EXTENT OF FEDERAL ACTIVITY IN THE FIELD, THE PRACTICAL CAPACITY OF A FEDERAL AGENCY TO REGULATE THE FIELD, AND POLICIES OR ATTITUDES OF A FEDERAL AGENCY ON THE PREEMPTION ISSUE. CONSUMER INTERESTS AT STATE AND LOCAL LEVELS ARE BEING REPRESENTED BY AGENCIES RATHER THAN THROUGH PRIVATE SUITS OR CRIMINAL PROSECUTIONS. AS CONSUMER PROTECTION LAWS INCREASE IN NUMBER, THE CASE FOR FEDERAL PREEMPTION BECOMES WEAKER. CASE LAW IS REVIEWED. (DEP)