Bush’s Final Legacy: Stealth Tort Reform

Reports out of Washington indicate that the Bush administration is about to give the American people a parting, one-finger salute by rewriting a wide range of federal rules in an effort to block product-safety lawsuits.

Known as tort reform, this sort of legislation – designed to reduce product liability costs to manufacturers by redefining the rules and reducing the penalties – guarantees to fatten corporate wallets and back consumers into a corner formed on one angle by shoddy merchandise and on the other by shrinking wallets.


Aimed at everything from asbestos to mattresses, the Bush administration is making a stealthy end run around state law by slyly inserting “preemption language” in federal agency mandates. In effect, Bush and his cohorts (mostly Democratic senators, unfortunately) are telling forward-thinking states like California that their pro-consumer laws are unenforceable because federal law preempts them.


These 50 rules will unravel most of the progress American consumers have made in the last 50 years defending themselves from unscrupulous manufacturers that put profit before product safety. In fact, if Bush has his way, America will be as bad as China in the arena of unsafe products.


Take the new policy that threatens to deprive farmers of the ability to sue the makers of pesticides and herbicides if the product doesn’t perform as advertised. The policy was clearly designed to benefit Monsanto (NYSE:MON – $79.06), whose herbicide Roundup was designed to be used in conjunction with Monsanto’s genetically-modified corn.


I won’t even go into the pitfalls of GM farming which, once begun, can never be abandoned because a single GM stray in a field can open a farmer to Monsanto patent infringement lawsuits and effectively bankrupt him (or her). But I will discuss Roundup, a glyphosate herbicide which is becoming increasingly more expensive as it loses its ability to fight weeds, leaving farmers locked in a lose-lose situation as the herbicide reduces yields while failing to control unwanted growth. For Monsanto and other giant agribusiness corporations it’s a clear win that can only add to the $11 billion bottom line they currently enjoy, thanks to those same American farmers.

In August the National Highway Traffic Safety Administration implemented improved vehicle roof safety standards after a truck crash paralyzed a driver. Tucked into that new rule and carefully concealed by pages of impenetrable text is another: drivers can no longer sue auto manufacturers if the same thing happens again.

This sort of secret maneuvering for corporate protection, a hallmark of the Bush era, has begun to dominate most federal agencies charged with protecting the American consumer, and is highlighted by a recent Department of Transportation move to stop California from regulating tailpipe emissions that are cited as contributing to climate change. Another rule limits the number of seatbelts auto makers can be required to install, and bars suits by passengers injured because a seatbelt wasn’t available.


In February of 2008, the U.S. Supreme Court ruled that consumers could not sue manufacturers of pharmaceuticals or medical devices as long as the product was approved by the Food and Drug Administration, or FDA. Given the FDA’s track record for research and safety, many products already on the market (and hundreds more to come) would not pass muster in some third world countries. Though a number of our products fail to meet EU standards, suffering Americans will be required to accept them in silence and endure whatever ill effects they produce without a whimper.


If another Bush-appointed Justice is seated on the Court to replace deceased Justice William H. Rehnquist, the survival of such corporate-favoritism rulings is virtually insured. As the American Association for Justice’s chief executive, Jon Haber, noted, this is a Bush-administration gift that will keep on giving long after the man himself is consigned to history.


While some tort reform is necessary to keep the courts from hearing every frivolous suit filed by money-hungry individuals and companies looking to make a fast buck, this wholesale dumping of formerly mandated federal protections represents wholesale disregard for the average consumer; a disregard the consumer is currently returning in spades as retail sales sink to the bottom of the chart.


The Consumer Product Safety Commission Modernization Act of 2007, passed in August of 2008, has done little to defray the damages. Passed largely to enable a Democratic Congress to reassure voters that they were concerned with product safety issues, the law does very little to protect any of us from unscrupulous manufacturers.


Some states, like California, are already facing down the federal government in the courts over their right to legislate on behalf of consumers, while others with the same inclination await Election Day in the hopes that Barack Obama, if elected, will prove as vigorous in undoing these stealthy infringements as he has promised to be.


Until then, buy nothing you don’t need and check with consumer reporting agencies to verify that what you must buy will not continue to cost you long after the initial luster has worn thin.



Disclosure: I don’t own Monsanto stock.

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