Along with my partner Andy Gaddes, I taught a recent CLE seminar on products liability issues. One of the topics the attendees — in-house counsel from a variety of industries — were most interested in was President Obama’s May, 2009 memorandum to federal agencies reversing the Bush administration’s well-reasoned preemption policy. The new policy is contained in a memo, not a formal executive order, but it clearly expresses a new view of preemption. Cloaked somewhat ironically in the guise of “state’s rights”, the policy comes from an administration that apparently has no trouble expanding the role of the federal government in unprecedented ways, taking over the auto companies, banks, and others. The memo provides that heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under the Administration’s new interpretation of the legal principles governing preemption. Finally, heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under the new interpretation of the applicable legal principles governing preemption. The legal basis of the doctrine is not really that malleable. Federal preemption is derived from the supremacy clause of the Constitution that says federal law is the supreme law of the land and any conflicting state law or regulation is without effect. The policy basis of the doctrine is equally clear: allowing each state to set diverse and individual safety standards can undercut needed uniformity and can subject manufacturers to expensive, unfair, and confusing requirements. It forces product sellers to potentially navigate a confusing, often contradictory patchwork quilt of up to 50 sets of laws and regulations. Of course, the preemption issue affects more than traditional administrative regulation by the states: companies may become subject to regulation by litigation at the hands of the plaintiffs’ bar. The new policy has the potential to create a real chilling effect in agencies that should be clear about the preemptive intent and reach of their regulations. While the Obama administration claims its approach breaks no new ground, it may well fundamentally weaken the federal government’s ability to address problems on a national level and thus may have untended consequences by allowing states to interfere with parts of the Obama administration’s domestic agenda. Regulations for health care and climate change, for example, arguably cannot work absent preemption. Preemption has been applied to drugs and medical devices, vehicular roof crush standards issued by the National Highway Traffic Safety Administration, mattress flammability standards issued by the Consumer Product Safety Commission, pesticides regulated by the EPA and a variety of other products. A majority of the regulations containing preemptive language were issued by the FDA and NHTSA.