As we’ve discussed before, the United States Supreme Court, in Puerto Rico v. Franklin-California Tax-Free Trust, 579 U.S. 115 (2016), sent the presumption against preemption, in express preemption cases anyway, into the dustbin of history.

[B]ecause the statute contains an express pre-emption clause, we do not invoke any presumption against pre-emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.

Id. at 125 (citations and quotation marks omitted).

Not much later, the Third Circuit, in Shuker v. Smith & Nephew, PLC, 885 F.3d 760 (3d Cir. 2018), used a footnote to refused to take the Supreme Court’s ruling at face value – purporting to carve out an exception for what it called “the historic police powers of the states”:

We disagree . . . that any presumption against express preemption no longer exists. . . .  [Puerto Rico v. Franklin] did not address preemption of claims invoking historic state regulation of matters of health and safety, such as the products liability claims at issue here.  As that case does not directly control here, we leave to the Supreme Court the prerogative of overruling its own decisions and continue to apply the presumption against preemption [in prescription medical product liability litigation].

885 F.3d at 771 n.9 (citations and quotation marks omitted).

Shuker’s footnoted affront to Supreme Court precedent was untenable when written, and has only become more so.  If the Third Circuit thought it was in the vanguard of an uprising against preemption, it was sorely mistaken.  Instead Shuker is in a minority of one.  As of 2023, every other court of appeals to address the question has recognized that Puerto Rico v. Franklin did indeed broadly abolish the presumption against preemption in express preemption cases.

Just this past year, 2023, no fewer than seven other circuits have weighed in – all rejecting any residual presumption against preemption in express preemption cases.  The First Circuit held, in Medicaid & Medicare Advantage Products Assn., Inc. v. Hernandez, 58 F.4th 5, 11-12 & n.5 (1st Cir. 2023):

[T]he Supreme Court has also recently stated that where a “statute contains an express pre-emption clause, [courts] do not invoke any presumption against pre-emption.”  Puerto Rico v. Franklin. . . .   Although appellants offer various arguments, based on pre-Franklin case law, that the presumption should apply in this case, the Supreme Court’s broad language in Franklin forecloses us from applying the presumption against preemption in interpreting the [statute’s] express preemption clause.

Id. at 11-12.  Following this quotation is a footnote “join[ing] other circuit courts that have applied Franklin to other statutes” and rejecting Shuker.  Id. at 12 n.5.

Last month, the Second Circuit reached the same result in Buono v. Tyco Fire Products, LP, ___ F.4th ___, 2023 WL 5437812, at *3 (2d Cir. Aug. 24, 2023):

As relevant here, when a federal law contains an express preemption clause, we focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.  We “do not invoke any presumption against pre-emption” when a statute contains an express-preemption clause.

Id. at 3 (quoting Puerto Rico v. Franklin).  Several district courts in the Second Circuit have followed Franklin in FDCA-based express preemption decisions.  See Bischoff v. Albertsons Cos., 2023 WL 4187494, at *3 (S.D.N.Y. June 26, 2023); Goldstein v. Walmart, Inc., 637 F. Supp.3d 95, 103 (S.D.N.Y. 2022); Colella v. Atkins Nutritionals, Inc., 348 F. Supp.3d 120, 130 (E.D.N.Y. 2018); Canale v. Colgate-Palmolive Co., 258 F. Supp.3d 312, 319 (S.D.N.Y. 2017); Olmstead v. Bayer Corp., 2017 WL 3498696, at *3 n.2 (N.D.N.Y. Aug. 15, 2017).

The Fifth Circuit likewise held in Young Conservatives of Texas Foundation v. Smatresk, 73 F.4th 304 (5th Cir. 2023):

A federal statute expressly preempts a state law when Congress adopts express language defining the existence and scope of preemption.  And when the statute contains an express preemption clause, the court does not indulge “any presumption against preemption but instead focus[es] on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.”

Id. at 311 (quoting Puerto Rico v. Franklin; other citations and quotation marks omitted).  Accord Dialysis Newco, Inc. v. Community Health Systems Group Health Plan, 938 F.3d 246, 258-60 (5th Cir. 2019) (applying Franklin to reject any presumption against preemption in ERISA case).

The Seventh Circuit has also adopted a broad application of Franklin.  Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453 (7th Cir. 2023), held:

[R]eliance on the presumption against preemption . . . stood in direct conflict with the Supreme Court’s instruction to “focus on the plain wording of the clause” instead of “invok[ing] any presumption against pre-emption.”  Consistent with Franklin, we focus on the text of [the preemption clause], which is “the best evidence of Congress’ preemptive intent.”

Id. at 465 (quoting Puerto Rico v. Franklin; other citations and quotation marks omitted).  Accord Daley v. Smith & Nephew Inc., 321 F. Supp.3d 891, 896-97 (E.D. Wis. 2018) (following Franklin in FDCA case).

The Eighth Circuit concurs.

Interpreting an express preemption provision, this court “focus[es] on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.”  For implied preemption, courts apply a presumption against preemption.

WinRed, Inc. v. Ellison, 59 F.4th 934, 942 (8th Cir. 2023) (quoting Puerto Rico v. Franklin; other citations and quotation marks omitted).  Accord Pharmaceutical Care Management Assn. v. Wehbi, 18 F.4th 956, 967 (8th Cir. 2021) (following Franklin and rejecting Lohr-based argument identical to the Shuker footnote); Ferrell v. Air EVAC EMS, Inc., 900 F.3d 602, 606 (8th Cir. 2018) (following Franklin in Airline Deregulation Act case); Watson v. Air Methods Corp., 870 F.3d 812, 817 (8th Cir. 2017) (en banc) (“In determining the meaning of an express pre-emption provision, we apply no presumption against pre-emption, and we ‘focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.’”) (quoting Franklin).

The Ninth Circuit applied Puerto Rico v. Franklin to reject presumption against preemption arguments twice in 2023.  In Hollins v. Walmart, Inc., 67 F.4th 1011 (9th Cir. 2023), an FDCA case, the court held:

[A] state-law misbranding claim that would allow a state to impose requirements different from those permitted under the FDCA is preempted.  “[W]e do not invoke any presumption against pre-emption” where, as here, “the statute contains an express pre-emption clause.”

Id. at 1016 (quoting Puerto Rico v. Franklin; other citations and quotation marks omitted).  Similarly, California Restaurant Assn. v. City of Berkeley, 65 F.4th 1045, 1050 (9th Cir. 2023); held:

As with any express preemption case, our focus is on the plain meaning of [the statute].  That’s because “the plain wording of the clause . . . necessarily contains the best evidence of Congress’ pre-emptive intent.” In discerning its meaning, we look to [the statute’s] text, structure, and context.  And we apply this textual analysis without any presumptive thumb on the scale for or against preemption.

Id. at 1050 (quoting Puerto Rico v. Franklin; other citations and quotation marks omitted).  The Ninth Circuit has applied the Franklin rule numerous times in express preemption cases.  See National Railroad Passenger Corp. v. Su, 41 F.4th 1147, 1153 n.1 (9th Cir. 2022); Webb v. Trader Joe’s Co., 999 F.3d 1196, 1202 (9th Cir. 2021); Connell v. Lima Corp., 988 F.3d 1089, 1097 (9th Cir. 2021) (Biomaterials Access Assurance Act); Atay v. County of Maui, 842 F.3d 688, 699 (9th Cir. 2016).  Courts in the Ninth Circuit have also repeatedly applied Franklin in finding FDCA-based express preemption.  Estate of Comatov v. Medtronic, Inc., 2023 WL 2922830, at *4 n.2 (C.D. Cal. March 16, 2023); Poozhikala v. Medtronic, Inc., 2022 WL 1076173, at *4 n.3 (C.D. Cal. April 7, 2022); Poozhikala v. Medtronic, Inc., 2022 WL 610276, at *3 n.1 (C.D. Cal. Jan. 31, 2022); Vieira v. Mentor Worldwide, LLC, 392 F. Supp.3d 1117, 1128-29 (C.D. Cal. 2019), aff’d, 845 Fed. Appx. 503 (9th Cir. 2021); Jacob v. Mentor Worldwide, LLC, 393 F. Supp.3d 912, 922-23 (C.D. Cal. 2019), aff’d, 845 Fed. Appx. 503 (9th Cir. 2021); Sewell v. Mentor Worldwide, LLC, 2019 WL 4038219, at *7 (C.D. Cal. Aug. 27, 2019), aff’d, 847 Fed. Appx. 380 (9th Cir. 2021); Billetts v. Mentor Worldwide, LLC, 2019 WL 4038218 at *6 (C.D. Cal. Aug. 27, 2019), aff’d, 847 Fed. Appx. 377 (9th Cir. 2021).

And last, but certainly not least, the en banc Eleventh Circuit recently applied Puerto Rico v. Franklin in Carson v. Monsanto Co., 72 F.4th 1261, 1267 (11th Cir. 2023) (en banc), holding that Franklin “abrogated” Lohr on the presumption against preemption:

Express preemption turns primarily on “the language of the pre-emption statute and the statutory framework surrounding it.”  Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996) (citation and internal quotation marks omitted), abrogated in part on other grounds by Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115 (2016).  Where Congress has enacted an express-preemption provision, we identify the state law that it preempts according to ordinary principles of statutory interpretation, and no presumption against preemption applies.  See Franklin Cal. Tax-Free Tr., 579 U.S. at 125.

Id. at 1267.

Several other circuit courts followed Puerto Rico v. Franklin before this year.  The Fourth Circuit held:

We think the best course is simply to follow as faithfully as we can the wording of the express preemption provision, without applying a presumption one way or the other.  And in all events, we need not enter the great preemption presumption wars here because the text of the preemption provision . . . governs the disposition of this case.

Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 762 n.1 (4th Cir. 2018) (citing Franklin).  See Mikos v. Abbott Laboratories, 2021 WL 5416534, at *3 (D. Md. Nov. 18, 2021) (following Franklin in FDCA case); In re Smith & Nephew Birmingham Hip Resurfacing (BHR) & R3 Hip Implant Products Liability Litigation, 300 F. Supp.3d 732, 742 n.8 (D. Md. 2018) (same).

The Tenth Circuit has also given Puerto Rico v. Franklin broad application.

[P]laintiffs first urge us to apply a presumption against preemption. . . .  But in more recent years [than Lohr], the Supreme Court has declined to apply such a presumption in express-preemption cases.  See Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 136 S. Ct. 1938, 1946 (2016) (explaining that for express preemption clause, courts “do not invoke any presumption against pre[]emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre[]emptive intent”). . . .  Accordingly, we do not invoke any presumption against preemption and focus instead on the plain language of the [statutory] preemption provision, which necessarily contains the best evidence of Congress’ preemptive intent.

Thornton v. Tyson Foods, Inc., 28 F.4th 1016, 1023-24 (10th Cir. 2022) (quoting Puerto Rico v. Franklin; other citations and quotation marks omitted).  Accord Dirty Boyz Sanitation Service, Inc. v. City of Rawlins, 889 F.3d 1189, 1198 (10th Cir. 2018) (citing Franklin and declining to apply presumption against preemption in case involving express preemption provision); EagleMed LLC v. Cox, 868 F.3d 893, 903-904 (10th Cir. 2017) (same).  See Garcia v. Bayer Essure, Inc., 631 F. Supp.3d 1026, 1034 (D.N.M. 2022) (applying Franklin in FDCA context).

Literally one day after Puerto Rico v. Franklin was decided by the Supreme Court (June 14 versus June 13, 2016), the District of Columbia Circuit reached the same result in Lindeen v. SEC, 825 F.3d 646 (D.C. Cir. 2016), “reject[ing] a “presumption against preemption” argument based on Lohr in express preemption case.  Id. at 656.  For obvious reasons, this decision did not cite to Franklin. 

As far as we can tell, the Sixth Circuit is the only federal court of appeals not to address the issue.  However, it did affirm a District Court ruling reached in In re Ford Motor Co. F-150 & Ranger Truck Fuel Economy Marketing & Sales Practices Litigation:

Where, as here, the “statute contains an express preemption clause,” the Court should “not invoke any presumption against pre-emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.”

2022 WL 551221, at *8 (E.D. Mich. Feb. 23, 2022) (quoting Puerto Rico v. Franklin), aff’d, 65 F.4th 851 (6th Cir. 2023).  However, the Sixth Circuit’s decision (which we discussed here) “beg[a]n and end[ed] with implied preemption.”  65 F.4th at 860.

Given everything that has happened over the five years – and particularly this year – the Third Circuit’s Shuker footnote now sticks out like a sore thumb.  Virtually universal precedent in other circuits has recognized that the Supreme Court meant what it held in Puerto Rico v. Franklin.  It’s high time for the Third Circuit to revisit Shuker on the erstwhile presumption against preemption, and we hope some enterprising defendant will make the requisite argument, and seek en banc review if necessary.