Given the broad sweep of federal legislation and the activities of 50 state legislatures, it is inevitable that there will be conflicts between state and federal law. If there is a conflict, the Constitution provides that federal law preempts the conflicting state law unless it is an area specifically reserved to the states. These conflicts arise in two ways: explicit or implicit preemption. Explicit preemption occurs when Congress passes a law that explicitly reserves a given area of legislation to the federal government. There are several important areas of explicit federal preemption in medical care. One example is the federal law that specifies the necessary labeling for medical devices and limits what additional requirements a state may impose without FDA permission. When Massachusetts passed a law requiring more information on hearing aid labels, a federal court barred enforcement of the law. Perhaps the most controversial is the Employment Retirement Income Security Act (ERISA), which preempts state regulation of many types of employer- provided health insurance plans.

Federal law implicitly preempts a state’s right to regulate if the federal government so completely controls the area that there is no room for state regulation. Federal regulation of television and radio, both intrinsically interstate activities because of the potential for their signals to cross state lines, leaves no room for state laws governing electronic communications. The FDA regulations on the approval, manufacture, labeling, and promotion of prescription drugs are so comprehensive as to leave little room for state regulation.

In some cases, federal law also preempts private lawsuits brought under state law. The Cigarette Labeling Act provided that states cannot require more or different health warnings on a cigarette package than those required by federal law. The Supreme Court found that this preempted state court lawsuits by smokers who claimed that the cigarettes were defective because the packages did not carry adequate warnings (the tobacco litigation has been based on fraudulently concealing the risks of smoking). Federal law also preempts certain lawsuits alleging vaccine- related injuries and substitutes an administrative compensation fund for possible state tort recoveries.