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at protecting state common law actions from preemption.262 “Apparently, implied preemption is a real threat even when Congress
Liggett Group, Inc.,264
the Court discussed the familiar principle of
expressio unius est exclusio alterius, which states that “Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.”265 However the Court then went on to state that if “federal law so thoroughly occupies a legislative field ‘as to make reasonable the inference that Congress left no room for the States to supplement it,’” then that state law is preempted. 266
Although we have previously examined the possibility of Timothy’s Law preemption as it relates to ERISA, a new federal policy could supersede established state legislation, including New York’s Timothy’s Law. The legislation, called The Mental Health Parity Act of 2007, was introduced in the 110th Congress and, if passed, has the potential to displace other states’ mental health parity laws, regardless of which legislation provides more or better mental health coverage.267
Under the analysis of preemption, it would be necessary for The Mental Health Parity Act of 2007 to include a savings clause identifying the specific intent of Congress not to supersede or preempt state law actions arising under the mental health parity laws of the independent states. However, in light of the Geier and Coppollone Courts’ holdings, there is always a chance that the Mental Health Parity Act of 2007 could
262. Id. at 867, 869. The savings clause in the federal act at issue stated “‘[c]ompliance with’ a [motor vehicle] safety standard prescribed under this chapter does not exempt a person from any liability at [state] common law.” Id. at 868. The Court found that conflict preemption . . . “turns on the identification of ‘actual conflict,’ and not on an express statement of pre-emptive intent.” Id. at
See also Burt v. Fumigation Serv. & Supply, Inc., 926 F. Supp. 624, 627, 630 (W.D. Mich.
(where victims of methyl bromide fumigation brought state law causes of action, the Court
held that some of those claims were preempted by 7 U.S.C.A. § 136v because the claims fall within the Congressional intent to preempt state law labeling or packaging requirements); Gomez v. St. Jude Med. Diag Div. Inc., 442 F.3d 919, 927-28 (5th Cir. 2006) (holding that a Louisiana patient’s state law claims regarding the defective design of a medical device were preempted by the Medical Device Amendments of 1976 to the Food, Drug, and Cosmetics Act because the manufacturer had obtained the premarket approval on the product design from the Food and Drug Administration).
263. Morgan, supra note 246, at 1386. The Geier Court also found that an express preemption clause does not foreclose implied conflict preemption. Geier, 529 U.S. at 869.
505 U.S. 504 (1992).
Id. at 517.
Id. at 516 (citing Fidelity Fed. Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 153
Mental Health Parity Act of 2007, S. 558, 110th Cong. (2007), available at