21 C.F.R. § 808.1

Scope

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(a) Introduction. This part prescribes procedures for the submission, review, and approval of applications for exemption from Federal preemption of State and local requirements applicable to medical devices under section 521 of the Federal Food, Drug, and Cosmetic Act.

(b) General rule for State and local requirements respecting devices. Section 521(a) of the Federal Food, Drug, and Cosmetic Act contains special provisions governing the regulation of devices by States and localities. That section prescribes a general rule that after May 28, 1976, no State or political subdivision of a State may establish or continue in effect any requirement with respect to a medical device intended for human use having the force and effect of law (whether established by statute, ordinance, regulation, or court decision), which is different from, or in addition to, any requirement applicable to such device under any provision of the Federal Food, Drug, and Cosmetic Act and which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under the Federal Food, Drug, and Cosmetic Act.

(c) Exempting from preemption certain State or local requirements respecting devices. Section 521(b) of the Federal Food, Drug, and Cosmetic Act contains a provision whereby the Commissioner of Food and Drugs may, upon application by a State or political subdivision, allow imposition of a requirement which is different from, or in addition to, any requirement applicable under the Federal Food, Drug, and Cosmetic Act to the device (and which is thereby preempted) by promulgating a regulation in accordance with this part exempting the State or local requirement from preemption. The granting of an exemption does not affect the applicability to the device of any requirements under the Federal Food, Drug, and Cosmetic Act. The Commissioner may promulgate an exemption regulation for the preempted requirement if he makes either of the following findings:

(1) That the requirement is more stringent than a requirement under the Federal Food, Drug, and Cosmetic Act applicable to the device; or

(2) That the requirement is required by compelling local conditions and compliance with the requirement would not cause the device to be in violation of any applicable requirement under the Federal Food, Drug, and Cosmetic Act.

(d) Meaning of “requirements applicable to a device.” State or local requirements are preempted only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the Federal Food, Drug, and Cosmetic Act, thereby making any existing divergent State or local requirements applicable to the device different from, or in addition to, the specific Food and Drug Administration requirements. There are other State or local requirements that affect devices that are not preempted by section 521(a) of the Federal Food, Drug, and Cosmetic Act because they are not “requirements applicable to a device” within the meaning of section 521(a) of the Federal Food, Drug, and Cosmetic Act. The following are examples of State or local requirements that are not regarded as preempted by section 521 of the Federal Food, Drug, and Cosmetic Act:

(1) Section 521(a) does not preempt State or local requirements of general applicability where the purpose of the requirement relates either to other products in addition to devices (e.g., requirements such as general electrical codes, and the Uniform Commercial Code (warranty of fitness)), or to unfair trade practices in which the requirements are not limited to devices.

(2) Section 521(a) does not preempt State or local requirements that are equal to, or substantially identical to, requirements imposed by or under the Federal Food, Drug, and Cosmetic Act.

(3) Section 521(a) does not preempt State or local permits, licensing, registration, certification, or other requirements relating to the approval or sanction of the practice of medicine, dentistry, optometry, pharmacy, nursing, podiatry, or any other of the healing arts or allied medical sciences or related professions or occupations that administer, dispense, or sell devices. However, regulations issued under section 520(e) or (g) of the Federal Food, Drug, and Cosmetic Act may impose restrictions on the sale, distribution, or use of a device beyond those prescribed in State or local requirements. If there is a conflict between such restrictions and State or local requirements, the Federal regulations shall prevail.

(4) Section 521(a) does not preempt specifications in contracts entered into by States or localities for procurement of devices.

(5) Section 521(a) does not preempt criteria for payment of State or local obligations under Medicaid and similar Federal, State or local health-care programs.

(6)(i) Section 521(a) does not preempt State or local requirements respecting general enforcement, e.g., requirements that State inspection be permitted of factory records concerning all devices, registration, and licensing requirements for manufacturers and others, and prohibition of manufacture of devices in unlicensed establishments. However, Federal regulations issued under sections 519 and 520(f) of the Federal Food, Drug, and Cosmetic Act may impose requirements for records and reports and good manufacturing practices beyond those prescribed in State or local requirements. If there is a conflict between such regulations and State or local requirements, the Federal regulations shall prevail.

(ii) Generally, section 521(a) does not preempt a State or local requirement prohibiting the manufacture of adulterated or misbranded devices. Where, however, such a prohibition has the effect of establishing a substantive requirement for a specific device, e.g., a specific labeling requirement, then the prohibition will be preempted if the requirement is different from, or in addition to, a Federal requirement established under the Federal Food, Drug, and Cosmetic Act. In determining whether such a requirement is preempted, the determinative factor is how the requirement is interpreted and enforced by the State or local government and not the literal language of the statute, which may be identical to a provision in the Federal Food, Drug, and Cosmetic Act.

(7) Section 521(a) does not preempt State or local provisions respecting delegations of authority and related administrative matters relating to devices.

(8) Section 521(a) does not preempt a State or local requirement whose sole purpose is raising revenue or charging fees for services, registration, or regulatory programs.

(9) Section 521(a) does not preempt State or local requirements of the types that have been developed under the Atomic Energy Act of 1954 (42 U.S.C. 2011 note), as amended, Subchapter C—Electronic Product Radiation Control of the Federal Food, Drug, and Cosmetic Act (formerly the Radiation Control for Health and Safety Act of 1968), and other Federal statutes, until such time as the Food and Drug Administration issues specific requirements under the Federal Food, Drug, and Cosmetic Act applicable to these types of devices.

(10) Part 820 of this chapter (21 CFR part 820) (CGMP requirements) does not preempt remedies created by States or Territories of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

(e) Determination of equivalence or difference of requirements applicable to a device. It is the responsibility of the Food and Drug Administration, subject to review by Federal courts, to determine whether a State or local requirement is equal to, or substantially identical to, requirements imposed by or under the Federal Food, Drug, and Cosmetic Act, or is different from, or in addition to, such requirements, in accordance with the procedures provided by this part. However, it is the responsibility of States and political subdivisions to determine initially whether to seek exemptions from preemption. Any State or political subdivision whose requirements relating to devices are preempted by section 521(a) may petition the Commissioner of Food and Drugs for exemption from preemption, in accordance with the procedures provided by this part.

(f) Applicability of Federal requirements respecting devices. The Federal requirement with respect to a device applies whether or not a corresponding State or local requirement is preempted or exempted from preemption. As a result, if a State or local requirement that the Food and Drug Administration has exempted from preemption is not as broad in its application as the Federal requirement, the Federal requirement applies to all circumstances not covered by the State or local requirement.

(g) Exemptions not applicable to certain State or local government requirements specifically related to hearing products. An exemption under this part shall not apply to any State or local government law, regulation, order, or other requirement specifically related to hearing products, including any requirement for the supervision, prescription, or other order, involvement, or intervention of a licensed person for consumers to access over-the-counter hearing aids, that:

(1) Would restrict or interfere with the servicing, marketing, sale, dispensing, use, customer support, or distribution of over-the-counter hearing aids, as defined under section 520(q) of the Federal Food, Drug, and Cosmetic Act, through in-person transactions, by mail, or online; and

(2) Is different from, in addition to, or otherwise not identical to, the regulations issued under section 709(b) of the FDA Reauthorization Act of 2017.

[43 FR 18665, May 2, 1978, as amended at 45 FR 67336, Oct. 10, 1980; 61 FR 52654, Oct. 7, 1996; 73 FR 34859, June 19, 2008; 87 FR 50761, Aug. 17, 2022]

Notes of Decisions

Cited in 227 cases (6 in the last 5 years), 1978–2025 · leading case: Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).

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Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996). · cites it 16× “, at 1344 (citing 21 CFR § 808.1 (d) (1995)). Under these regulations, the court concluded, it was not necessary that the federal regulation specifically deal with pacemakers, but only that the federal requirement "should, in some way, be `restricted by nature' to a particular…”

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). · cites it 8× “If so, we must then determine whether the Riegels' common-law claims are based upon New York requirements with respect to the device that are "different from, or in addition to" the federal ones, and that relate to safety and effectiveness. § 360k(a). We turn to the first…”

Barbara Mitchell & Gregory Mitchell v. Collagen Corp., 67 F.3d 1268 (7th Cir. 1995). · cites it 22× “” 21 C.F.R. § 808.1 (b). Relying upon the statutory preemption provision, the court reasoned that Congress intended the MDA amendments to have a broad preemptive effect— one that encompassed common law causes of action.”

Barbara E. Horn, of the Est. of Daniel Ray Horn, Deceased v. Thoratec Corp., 376 F.3d 163 (3rd Cir. 2004). · cites it 7× “§ 360k(a); 21 C.F.R. § 808.1 (b) (see p. 174, infra, for text of regulation); Kemp v.”

Charlotte Kennedy & Robert L. Kennedy v. Collagen Corp., 67 F.3d 1453 (9th Cir. 1995). · cites it 14× “1(d) provides: State or local requirements are preempted only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the act, thereby making any existing divergent…”

Walker v. Johnson & Johnson Vision Prods., Inc, 552 N.W.2d 679 (Mich. Ct. App. 1996). · cites it 18× “Defendant also contends that 21 CFR 808.1(b) supports its argument that plaintiff's *687 claims are preempted.”

Sherr-Una Booker v. C. R. Bard, Inc., 969 F.3d 1067 (9th Cir. 2020). · cites it 7× “Our interpretation of that provision is “‘substantially informed’ by the FDA regulation set forth” at 21 C.F.R. § 808.1 (d), which addresses the statute’s preemptive scope.”

Steele v. Collagen Corp., 97 Cal. Daily Op. Serv. 3683 (Cal. Ct. App. 1997). · cites it 16× “, requirements such as general electrical codes, and the Uniform Commercial Code (warranty of fitness)), or to unfair trade practices in which the requirements are not limited to devices. [¶] (2) Section 521(a) does not preempt State or local requirements that are equal to, or…”

Richard Stengel v. Medtronic Inc., 704 F.3d 1224 (9th Cir. 2013). · cites it 4× “21 C.F.R. § 808.1 (d). The Supreme Court has decided three preemption cases under the MDA.”

McLaughlin v. Bayer Corp., 172 F. Supp. 3d 804 (E.D. Pa. 2016). · cites it 4× “21 C.F.R. § 808.1 (d)(1). However, Riegel considered the effect of 21 C.”

Jane King v. Collagen Corp., 983 F.2d 1130 (1st Cir. 1993). · cites it 6× “21 C.F.R. § 808.1 (d). In this case, it is clear that the FDA has imposed requirements on Zyderm related to labeling, design, manufacturing and other aspects of the device pursuant to the MDA scheme.”

Talbott v. C.R. Bard, Inc., 865 F. Supp. 37 (D. Mass. 1994). · cites it 11× “2d at 1420 ; 21 C.F.R. § 808.1 (b). “Congress’s intent in enacting this [preemption] provision was to prevent state requirements from unduly burdening interstate commerce.”

Show all 227 citing cases →

— 21 C.F.R. § 808.1(b) — 9 cases

Walker v. Johnson & Johnson Vision Prods., Inc, 552 N.W.2d 679 (Mich. Ct. App. 1996). “Defendant also contends that 21 CFR 808.1(b) supports its argument that plaintiff's *687 claims are preempted.”

Jane King v. Collagen Corp., 983 F.2d 1130 (1st Cir. 1993). “21 C.F.R. § 808.1 (d). In this case, it is clear that the FDA has imposed requirements on Zyderm related to labeling, design, manufacturing and other aspects of the device pursuant to the MDA scheme.”

Kemp v. Pfizer, Inc., 835 F. Supp. 1015 (E.D. Mich. 1993).

Rosci v. AcroMed, Inc., 669 A.2d 959 (Pa. Super. Ct. 1995).

Stewart v. Int'l Playtex, Inc., 672 F. Supp. 907 (D.S.C. 1987).

— 21 C.F.R. § 808.1(c) — 1 case

Stewart v. Int'l Playtex, Inc., 672 F. Supp. 907 (D.S.C. 1987).

— 21 C.F.R. § 808.1(d) — 14 cases

Annamarie Lamontagne, Doreen A. Festa & Susan B. Pregler v. E.I. Du Pont De Nemours & Co., Inc., 41 F.3d 846 (2d Cir. 1994).

Joyce A. Moore v. Kimberly-Clark Corp., 867 F.2d 243 (5th Cir. 1989).

Alton v. Medtronic, Inc., 970 F. Supp. 2d 1069 (D. Or. 2013).

Brooks v. Howmedica, 236 F.3d 956 (8th Cir. 2001).

— 21 C.F.R. § 808.1(d)(1) — 5 cases

McLaughlin v. Bayer Corp., 172 F. Supp. 3d 804 (E.D. Pa. 2016). “21 C.F.R. § 808.1 (d)(1). However, Riegel considered the effect of 21 C.”

Talbott v. C.R. Bard, Inc., 865 F. Supp. 37 (D. Mass. 1994). “2d at 1420 ; 21 C.F.R. § 808.1 (b). “Congress’s intent in enacting this [preemption] provision was to prevent state requirements from unduly burdening interstate commerce.”

Worthy v. Collagen Corp., 921 S.W.2d 711 (Tex. App. 1996).

State Ex Rel. Miller v. New Womyn, Inc., 679 N.W.2d 593 (Iowa 2004).

— 21 C.F.R. § 808.1(d)(1995) — 1 case

Lewis v. Intermedics Intraocular, Inc., 19 F. Supp. 2d 625 (E.D. La. 1998).

— 21 C.F.R. § 808.1(d)(2) — 2 cases

Brooks v. Howmedica, 236 F.3d 956 (8th Cir. 2001).

— 21 C.F.R. § 808.1(d)(6)(ii) — 1 case

Weiland v. Telectronics Pacing Sys., Inc., 704 N.E.2d 854 (Ill. App. Ct. 1998).

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