Amicus Curiae Brief — Johnson & Johnson, et al., Petitioners v. Lynn Fitch, Attorney General of Mississippi, ex rel. Mississippi

Supreme Court briefSep 30, 2021

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No. 21-348

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOHNSON & JOHNSON AND

JOHNSON & JOHNSON CONSUMER INC.,

Petitioners,

LYNN FITCH, ATTORNEY GENERAL

OF THE STATE OF MISSISSIPPI,

EX REL. THE STATE OF MISSISSIPPI,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

From The Mississippi Supreme Court

---------------------------------♦--------------------------------AMICUS CURIAE BRIEF OF THE FEDERATION

OF DEFENSE & CORPORATE COUNSEL

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------PETER O. GLAESSNER

ALLEN GLAESSNER

HAZELWOOD & WERTH LLP

180 Montgomery Street,

Suite 1200

San Francisco, CA 94104

(415) 697-2000

pglaessner@aghwlaw.com

Attorney for Amicus Curiae

the Federation of Defense

& Corporate Counsel

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

TABLE OF AUTHORITIES .................................

STATEMENT OF INTEREST .............................

SUMMARY OF ARGUMENT ..............................

ARGUMENT ........................................................

THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE MULTIPLE LOWER

COURT SPLITS THAT UNDERMINE

PREDICTABILITY IN THE LAW...............

A. Presumptions Against Express Preemption Are Prohibited By Franklin ....

B. The Split Over What Type of Agency

Action Carries Preemptive Force ........

C. Certiorari Is an Appropriate Mechanism to Resolve the Doctrinal Chaos

Found In the Lower Courts ................. 10

II.

PRESUMPTIONS AGAINST PREEMPTION WEAKEN NATIONAL UNIFORMITY, REPLACING CONFIDENCE WITH

CHAOS ...................................................... 11

CONCLUSION..................................................... 17

TABLE OF AUTHORITIES

Page

CASES

Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751

(4th Cir. 2018)............................................................7

Brown v. Mortensen, 253 P.3d 522 (Cal. 2011) .............7

Charter Advanced Servs. (MN), LLC v. Lange,

903 F.3d 715 (8th Cir. 2018) ......................................9

City of N.Y. v. Permanent Mission of India to

United Nations, 618 F.3d 172 (2d Cir. 2010) ............9

Conklin v. Medtronic, Inc., 431 P.3d 571 (Ariz.

2018) ..........................................................................7

Dialysis Newco, Inc. v. Cmty. Health Sys. Grp.

Health Plan, 938 F.3d 246 (5th Cir. 2019) ................7

Dirty Boyz Sanitation Serv., Inc. v. City of Rawlins, 889 F.3d 1189 (10th Cir. 2018) ..........................7

Dolin v. GlaxoSmithKline LLC, 951 F.3d 882

(7th Cir. 2020)............................................................9

Feikema v. Texaco, Inc., 16 F.3d 1408 (4th Cir.

1994) ..........................................................................9

Fellner v. Tri-Union Seafoods, LLC, 539 F.3d 237

(3d Cir. 2008) .............................................................9

Ferrell v. Air EVAC EMS, Inc., 900 F.3d 602 (8th

Cir. 2018) ...................................................................7

Finn v. G.D. Searle Co., 677 P.2d 1147 (Cal. 1984) .......13

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555

(1980) .......................................................................11

iii

TABLE OF AUTHORITIES—Continued

Page

Good v. Altria Grp., Inc., 501 F.3d 29 (1st Cir.

2007), aff’d on other grounds and remanded,

555 U.S. 70 (2008) .....................................................8

Lipschultz v. Charter Advances Svs. (MN), LLC,

140 S.Ct. 6, 205 L.Ed.2d 262 (2019) .........................8

Merck Sharp & Dohme Corp. v. Albrecht, 139

S.Ct. 1668 (2019) .......................................................8

Puerto Rico v. Franklin Cal. Tax-Free Tr., 136

S.Ct. 1938 (2016) ........................................... 3, 5, 6, 7

Reid v. Johnson & Johnson, 780 F.3d 952 (9th

Cir. 2015) ...................................................................9

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) ..............8

Shuker v. Smith & Nephew, PLC, 885 F.3d 760

(3d Cir. 2018) .............................................................7

State v. Norfolk S. Ry. Co., 107 N.E.3d 468 (Ind.

2018) ..........................................................................7

Ter Beek v. City of Wyoming, 846 N.W.2d 531

(Mich. 2014) ...............................................................7

Thompson v. County of Alameda, 614 P.2d 728

(Cal. 1980) ...............................................................12

Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir.

2021), pet. for cert. filed, No. 21-194 (Aug. 9,

2021) ..........................................................................7

Turek v. Gen. Mills, Inc., 662 F.3d 423 (7th Cir.

2011) ........................................................................12

Utah Native Plant Soc’y v. U.S. Forest Serv., 923

F.3d 860 (10th Cir. 2019) ...........................................9

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. art. VI, cl. 2 .................................................3

STATUTES AND RULES

21 C.F.R. § 10.30(a) .......................................................9

21 C.F.R. § 10.30(e)(1-3) ................................................9

21 C.F.R. § 10.45 ...........................................................9

15 U.S.C. § 1451 et seq..................................................4

15 U.S.C. § 1471 et seq..................................................4

21 U.S.C. §§ 361-62 .....................................................11

21 U.S.C. § 371 ............................................................11

21 U.S.C. § 374(a)(1) ...................................................11

21 U.S.C. § 379s .................................................. 3, 6, 11

OTHER AUTHORITIES

71 Fed. Reg. at 3935....................................................12

Alan Untereiner, The Defense of Preemption: A

View From the Trenches, 84 Tul. L. Rev. 1267

(2010) .......................................................................15

Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 George

Washington L. Rev. 449 (2008) ........................... 6, 15

Charles D. Nyberg, The Need for Uniformity in

Food Labeling, Food Drug Cosm. L.J. 229

(1985) .......................................................................16

TABLE OF AUTHORITIES—Continued

Page

Eliner Elhauge, Statutory Default Rules: How to

Interpret Unclear Legislation (Harvard Pub.

2008) ..........................................................................8

Frank S. Alexander, Federal Intervention in Real

Estate Finance: Preemption and Federal Common Law, 71 N.C. L. Rev. 294 (1993) ......................16

H.R. Rep. No. 105-399 (1997) (Conf. Rep.) .................11

Jay B. Sykes, Nicole Vanatko, Federal Preemption:

A Legal Primer, CONGRESSIONAL RESEARCH SERVICE, Summary, https://crsreports.congress.gov

(last visited Sept. 13, 2021)................................. 6, 10

Joseph R. Mason, Robert Kulick, and Hal J.

Singer, The Economic Impact of Eliminating

Preemption of State Consumer Protection

Laws, 12 Bus. L. J. 781 (2010) ................................14

Justin W. Aimonetti & Christian Talley, Game

Changer: Why and How Congress Should

Preempt State Student-Athlete Compensation

Regimes, 72 Stan. L. Rev. Online 27 (2019) ............15

Lars Noah, “The Imperative to Warn: Disentangling the ‘Right to Know’ from the ‘Need to

Know’ About Consumer Product Hazards,” 11

Yale J. Reg. 293 (1994) ............................................12

W. Page Keeton, et al., Prosser & Keeton on the

Law of Torts § 96 (5th ed. 1984) .............................12

STATEMENT OF INTEREST1

The Federation of Defense & Corporate Counsel

(FDCC) is a not-for-profit corporation with national

and international membership of 1,400 defense and

corporate counsel working in private practice, as inhouse counsel, and as insurance claims representatives. A significant number of FDCC members practice

in the trial and appellate courts of the United States

both at the federal and state level. The FDCC constantly strives to protect the American system of

justice. Its members have established a strong legacy

of representing the interests of civil defendants, including publicly and privately owned businesses, public entities, and individual defendants. The FDCC

seeks to assist courts in addressing issues of importance to its membership that concern the fair and

predictable administration of justice.

A touchstone of a fair judicial system is one with

predictable procedural safeguards to all litigants no

matter the court, the state, or the judge. This case

presents issues of vital interest concerning how the

courts should decide preemption cases so that there is

predictability in the law. The FDCC’s membership is

able to provide scholarly and practical insights into the

Pursuant to Rule 37, Amicus Curiae certifies that no

counsel for a party offered this brief, in whole or in part, and that

no person or entity, other than amicus, its members, or its counsel

has made a monetary contribution to the preparation or submission of this brief. Both parties have given their blanket

consent to the filing of amicus briefs and received notice of the

FDCC’s intention to file this brief.

issue of preemption and its impact on consumers and

businesses. Through its broad membership and nationwide perspective, the FDCC is well-positioned to

address the important legal, constitutional, and public

policy questions posed in this case.

Accordingly, the FDCC supports the positions of

Petitioners. The FDCC urges the Court to grant the

Petition and resolve the splits in the lower courts that

threaten to impede national uniformity of the law.

Reversing the order below is necessary to an effective

and predictable operation of preemption.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

This case is not confined to what labels the

cosmetics industry is required to place on its products.

Rather, this case has far-reaching ramifications for

consumers and businesses alike—well beyond any

single business sector. The Mississippi Supreme

Court’s opinion undermines express preemption, creating an environment which the plain language codified

by Congress varies depending on where one is on

the map. Consumers will be flooded with multiple

instructions and warnings, including contradictory

ones. Such a flooding of the market undermines the

effectiveness of the warnings, placing consumers at a

heightened public health risk. Consumers in one state

may have remedies that consumers in another state

do not, thus encouraging forum shopping. Such a

patchwork approach increases the economic costs to

consumers, according to empirical research. Manufacturers will be forced to either comply with a multitude

of conflicting and burdensome state laws and federal

agencies or risk being subjected to expensive lawsuits

and inconsistent jury verdicts. Preemption reduces

costs incurred by manufacturers in trying to comply

with a multitude of conflicting requirements. Franklin

requires that courts take their thumbs off the scales

when deciding preemption and instead of presuming

against preemption, simply apply the plain language

spoken by Congress.

---------------------------------♦---------------------------------

ARGUMENT

THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE MULTIPLE LOWER

COURT SPLITS THAT UNDERMINE

PREDICTABILITY IN THE LAW.

Pursuant to the Supremacy Clause of the United

States Constitution, Congress may preempt state

statutory or common law through federal legislation.

See U.S. Const. art. VI, cl. 2. At issue here is whether

the FDA’s actions through 21 U.S.C. § 379s preempts the Mississippi Attorney General’s lawsuit. The

statute provides:

(a) In general

Except as provided in subsection (b), (d),

or (e), no State or political subdivision of

a State may establish or continue in

effect any requirement for labeling or

packaging of a cosmetic that is different

from or in addition to, or that is otherwise

not identical with, a requirement specifically applicable to a particular cosmetic

or class of cosmetics under this chapter,

the Poison Prevention Packaging Act of

1970 (15 U.S.C. 1471 et seq.), or the Fair

Packaging and Labeling Act (15 U.S.C.

1451 et seq.).

(b) Exemption

Upon application of a State or political

subdivision thereof, the Secretary may by

regulation, after notice and opportunity

for written and oral presentation of

views, exempt from subsection (a), under

such conditions as may be prescribed in

such regulation, a State or political subdivision requirement for labeling or packaging that—

(1) protects an important public interest that would otherwise be unprotected;

(2) would not cause a cosmetic to be in

violation of any applicable requirement

or prohibition under Federal law; and

(3) would not unduly burden interstate

commerce.

For purposes of subsection (a), a reference

to a State requirement that relates to the

packaging or labeling of a cosmetic means

any specific requirement relating to the

same aspect of such cosmetic as a requirement specifically applicable to that

particular cosmetic or class of cosmetics

under this chapter for packaging or

labeling, including any State requirement relating to public information or

any other form of public communication.

(d) No effect on product liability law

Nothing in this section shall be construed

to modify or otherwise affect any action

or the liability of any person under the

product liability law of any State.

(e) State initiative

This section shall not apply to a State

requirement adopted by a State public

initiative or referendum enacted prior to

September 1, 1997.

Two lower court splits undermine this Court’s

precedent and warrant review. Without intervention,

the lack of uniformity and predictability of when state

law is preempted will grow exponentially.

A. Presumptions Against Express Preemption Are Prohibited By Franklin.

First, the Mississippi Supreme Court added its

state to a lower court split involving whether a

presumption against preemption could be applied to

express preemption clauses. Before 2016, questions

abounded as to whether an express preemption

clause was subject to a presumption against that

Congressionally mandated preemption. See, e.g., Jay B.

Sykes, Nicole Vanatko, Federal Preemption: A Legal

Primer, CONGRESSIONAL RESEARCH SERVICE, Summary,

https://crsreports.congress.gov (last visited Sept. 13,

2021) (noting that courts have “applied the presumption somewhat inconsistently, raising questions about

its current scope and effect.”).

However, in 2016, this Court was clear in Puerto

Rico v. Franklin Cal. Tax-Free Tr. that where the

statute contains an express preemption clause, “we do

not invoke any presumption against preemption but

instead ‘focus on the plain wording of the clause, which

necessarily contains the best evidence of Congress’

pre-emptive intent.” 136 S.Ct. 1938, 1946 (2016).

Accordingly, the analysis begins and ends here with

the plain language of 21 U.S.C. § 379s. The language

either preempts the Mississippi Attorney General’s

lawsuit or it does not. There is no room for carving out

exceptions not recognized in Franklin. The language of

Congress should apply—regardless of geographical

location.

This Court has not applied a presumption against

preemption to any express preemption clause in the

five subsequent years since Franklin. See Pet. 14.

Despite this fact, a lower court split on the issue continues. It is important to have clear and uniform

standards on how preemption will be applied because,

as one commentator has noted, “where [the presumption against preemption] rears its heads, its effect

is seemingly outcome determinative.” Catherine M.

Sharkey, Products Liability Preemption: An Institutional

Approach, 76 George Washington L. Rev. 449, 506

(2008).

Four state supreme courts (Mississippi, Indiana,

California, and Michigan) and two U.S. Circuit Courts

of Appeals (Third and Ninth) continue to apply a

presumption to an express preemption clause where

either the federal statute is found to implicate the

state police powers or to be ambiguous. See, e.g., Trucking Ass’n v. Bonta, 996 F.3d 644, 654, 664 n.14 (9th Cir.

2021), pet. for cert. filed, No. 21-194 (Aug. 9, 2021);

Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 771 (3d

Cir. 2018); State v. Norfolk S. Ry. Co., 107 N.E.3d 468,

474 (Ind. 2018); Ter Beek v. City of Wyoming, 846

N.W.2d 531, 536-37 (Mich. 2014); Brown v. Mortensen,

253 P.3d 522, 529 (Cal. 2011); Pet. at 15–17.

Four U.S. Circuit Courts of Appeals (Fourth,

Fifth, Eighth, and Tenth) and the Arizona Supreme

Court apply Franklin to all express preemption clauses

without the exceptions made by the Mississippi

Supreme Court. Dialysis Newco, Inc. v. Cmty. Health

Sys. Grp. Health Plan, 938 F.3d 246, 257-59 (5th Cir.

2019); Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751,

761-62 (4th Cir. 2018); Ferrell v. Air EVAC EMS, Inc.,

900 F.3d 602, 606 (8th Cir. 2018); Dirty Boyz Sanitation

Serv., Inc. v. City of Rawlins, 889 F.3d 1189, 1198 (10th

Cir. 2018); Conklin v. Medtronic, Inc., 431 P.3d 571, 574

(Ariz. 2018); Pet. at 17–19.

B. The Split Over What Type of Agency

Action Carries Preemptive Force.

Second, there is a lower court split as to what type

of federal agency action can preempt state law. This is

despite opinions from this Court recognizing that

federal agencies, such as the FDA, can preempt state

law in multiple ways. See, e.g., Merck Sharp & Dohme

Corp. v. Albrecht, 139 S.Ct. 1668, 1679 (2019); Riegel v.

Medtronic, Inc., 552 U.S. 312, 323 (2008). Justice

Thomas has recognized that the Court must find “an

appropriate case” to decide this very issue. Lipschultz

v. Charter Advances Svs. (MN), LLC, 140 S.Ct. 6, 7

(2019) (Thomas, J., concurring in denial of cert.).

“Understanding the proper basis and limits of judicial

deference to agency interpretations is vital for a simple

reason: in the modern administrative state, most

statutory interpretations are done by agencies.” Eliner

Elhauge, Statutory Default Rules: How to Interpret

Unclear Legislation, 79 (Harvard Pub. 2008).

The Mississippi Supreme Court and the First

Circuit Court of Appeals would deny preemptive effect

to the FDA action under the facts of this case. Good v.

Altria Grp., Inc., 501 F.3d 29, 51-53 (1st Cir. 2007), aff ’d

on other grounds and remanded, 555 U.S. 70 (2008);

Pet. at 20.

On the other hand, six U.S. Circuit Courts of

Appeals (Second, Third, Fourth, Seventh, Eighth,

Ninth, and Tenth) recognize the preemptive effect to

the denial of a citizen petition, although they apply

different tests to determine which agency actions carry

preemptive force. Dolin v. GlaxoSmithKline LLC, 951

F.3d 882, 891 (7th Cir. 2020); Utah Native Plant Soc’y

v. U.S. Forest Serv., 923 F.3d 860, 868 n.5 (10th Cir.

2019); Charter Advanced Servs. (MN), LLC v. Lange,

903 F.3d 715, 718 (8th Cir. 2018); Reid v. Johnson &

Johnson, 780 F.3d 952, 964 (9th Cir. 2015); City of N.Y.

v. Permanent Mission of India to United Nations, 618

F.3d 172, 187 (2d Cir. 2010); Fellner v. Tri-Union

Seafoods, LLC, 539 F.3d 237, 245 (3d Cir. 2008);

Feikema v. Texaco, Inc., 16 F.3d 1408, 1416 (4th Cir.

1994).

Finally, this case presents an opportunity for this

Court to further address how the FDA’s administrative

review process arising from citizen petitions may

establish federal preemption.2 The citizen petition

process found in 21 C.F.R. §§ 10.30(a), (e)(1-3) was

followed twice here—first in 1994 and again in 2008.

Both citizen petitions requested the FDA to

require a cancer warning. That failure to warn theory

is the underlying premise for the State of Mississippi’s

lawsuit under its Consumer Protection Act. Ultimately,

the FDA concluded the requested warning was not

warranted based on the scientific evidence it examined. The final decision issued by the FDA in 2014 was

subject to judicial review. 21 C.F.R. § 10.45. However,

the FDA’s final agency action was not challenged.3 As

a result, the Court has before it a case suited to provide

Mississippi Supreme Court opinion at paragraphs 22-26.

See Petitioners’ App. A, pgs. 13a-15a.

The two citizen petitions were denied in the same final

decision in 2014.

guidance to lower courts concerning FDA regulatory

action, taken in response to citizen petitions, and when

it may preempt state-based lawsuits.

C. Certiorari Is an Appropriate Mechanism to Resolve the Doctrinal Chaos

Found In the Lower Courts.

Presumptions against federal preemption or

against the preemptive effect of agency actions will

impact more than just warning labels in cosmetics

cases. “[P]reemptive federal statutes shape the regulatory environment for most major industries,

including drugs and medical devices, banking, air

transportation, securities, automobile safety, and

tobacco.” Jay B. Sykes, Nicole Vanatko, Federal Preemption: A Legal Primer, CONGRESSIONAL RESEARCH

SERVICE, p.1, https://crsreports.congress.gov (last visited

Sept. 13, 2021).4

Thus, this case implicates policy decisions on

every level of every industry, not just the very

substantial issues of public health and interstate

commerce in the cosmetics industry specifically

raised by the Petition. Given the significant splits in

the lower courts, review is warranted. Without review,

the inconsistent interpretation of express preemption

See the petition for certiorari currently pending before this

Court in Monsanto Co. v. Hardeman No. 21-241, filed August 16,

2021, raising similar preemption issues concerning pesticide label

warnings.

clauses will upend any predictability of the law for

consumers and manufacturers.

II.

PRESUMPTIONS AGAINST PREEMPTION

WEAKEN NATIONAL UNIFORMITY, REPLACING CONFIDENCE WITH CHAOS.

Congressional intent behind the FDA includes

national uniformity of labelling and warning requirements. See H.R. Rep. No. 105-399, 103 (1997) (Conf.

Rep.); 21 U.S.C. §§ 361-62, 371, 374(a)(1), 379s. National uniformity in product labelling protects consumers and manufacturers alike.

1. Uniform standards protect the consumer by

increasing the effectiveness of any given warning. The

more warnings given in varying language, the more

watered down any one of them becomes. This Court has

cautioned (albeit in the context of financial disclosures)

that “[m]eaningful disclosure does not mean more

disclosure. Rather, it describes a balance between . . .

complete disclosure . . . and the need to avoid informational overload.” Ford Motor Credit Co. v. Milhollin,

444 U.S. 555, 558 (1980) (citations and quotations

omitted). The Seventh Circuit Court of Appeals has

recognized,

It is easy to see why Congress would not want

to allow states to impose disclosure requirements of their own on packaged food

products, most of which are sold nationwide. Manufacturers might have to print 50

different labels, driving consumers who buy

good products in more than one state crazy.

Turek v. Gen. Mills, Inc., 662 F.3d 423, 426 (7th Cir.

2011). See also Thompson v. County of Alameda, 614

P.2d 728, 735 (Cal. 1980) (multiple warnings “produce

a cacophony . . . that by reason of their sheer volume

would add little to the effective protection of the

public.”); W. Page Keeton, et al., Prosser & Keeton on

the Law of Torts § 96, at 686 (5th ed. 1984) (cautioning

that too much detail in a warning can be “counterproductive”).

The warnings themselves can become useless,

including to the medical professionals advising the

consumer. Indeed, the FDA has warned that flooding

the market with conflicting warnings can harm the

consumers because additional warnings “can erode

and disrupt careful and truthful representation of benefits and risk that prescribers need to make appropriate judgments about drug use.” 71 Fed. Reg. at 3935.

“[L]abelling that includes theoretical hazards not wellgrounded in scientific evidence can cause meaningful

risk information to ‘lose its significance.’ ” Id.; see also

Lars Noah, “The Imperative to Warn: Disentangling the

‘Right to Know’ from the ‘Need to Know’ About Consumer Product Hazards,” 11 Yale J. Reg. 293, 382-83

(1994) (“In the event that labeling included warnings

of all possible side effects, the cacophony of risk information could undermine a doctor’s ability to appreciate

warnings about meaningful hazards”). The flooding of

warnings in the market results in chaos and public

health suffers.

Even truthful warnings can sometimes fail to

communicate in an effective way. In Finn v. G.D. Searle

Co. (Cal. 1984), the California Supreme Court observed:

“[E]xperience suggest[s] that if every report of a

possible risk, no matter how speculative, conjectural or

tentative imposed an affirmative duty to give some

warning, a manufacturer would be required to inundate physicians indiscriminately with notice of any

and every hint of danger, thereby inevitably diluting

the force of any specific warning given.” 677 P.2d 1147,

1153.

2. Further, chaos does not create an environment

where the consumer is protected economically, as

documented by empirical research. Economists researching state consumer protection laws have opined

that preemption reduces the costs to the consumer,

relying on case studies involving the wine and wireless

industries before and after uniform regulatory standards. In the wine industry,

[s]everal states erected barriers to out-ofstate wineries directly shipping their goods

ordered online or over the phone to consumers

without similar restrictions for in-state

wineries; these barriers were overturned by

the Supreme Court in 2005, creating what

economists call a “natural experiment” designed to test the consumer-welfare effects

of the state regulations. Economic research

reveals that, soon after states’ discriminatory

regulations were repealed, wine prices at

brick-and-mortar stores declined up to 40%

relative to prices offered by online retailers.

Joseph R. Mason, Robert Kulick, and Hal J. Singer, The

Economic Impact of Eliminating Preemption of State

Consumer Protection Laws, 12 Bus. L. J. 781, 783

(2010). The reason for the decline was due to both

“facilitating entry by out-of-state sellers. but also by

placing competitive pressure on the in-state sellers.”

Id. at 801. (citations omitted)

Similarly, in the wireless industry,

[b]efore 1994, states and the federal government had concurrent power to regulate

wireless services; in 1994, the Federal Communications Commission preempted the state

laws regulating wireless telephony. Once

again, economic research demonstrated that

the change in regulatory oversight toward

uniform, national standards increased economic efficiency. Before deregulation, consumers in states that regulated wireless

telephony, such as California and New York,

paid more. Furthermore, state regulations

discouraged wireless providers from entering

the market and slowed consumer adoption of

cellular phones. Just as balkanized state laws

hindered the growth of wireless networks and

raised cellular prices for everyone, balkanized

state branching laws inhibited the growth of

ATM networks and bank branches, raising

the cost of credit and banking services for

consumers.

Id. Accordingly, the economists conclude that “[w]hen

preemption is considered from an economic efficiency

standpoint, its merits become apparent.” Id. at 782.

See also Catherine M. Sharkey, Products Liability

Preemption: An Institutional Approach, 76 George

Washington L. Rev. 449, 483 (2008) (“These criteria—

in economic parlance, economies of scope or scale and

the existence of interstate externalities—tend to favor

regulation at the national level.”).

This economic analysis aligns with common sense.

Without uniformity, manufacturers are forced to either

comply with a multitude of conflicting and burdensome

state laws and federal agency edicts or risk being

subjected to numerous lawsuits or state regulatory

sanctions. Regardless of the choice made, these increases in risk will increase the costs of doing business

on a nationwide level. Manufacturers must be able to

predict the risks and requirements of participating in

the market, and be able to create reliable, efficient, and

cost-effective operations.

3. Thus, preemption encourages a consistent

standard and protects interstate commerce from the

undue burdens imposed by diverse, nonuniform, and

often conflicting state laws and regulatory schemes.

See, e.g., Justin W. Aimonetti & Christian Talley, Game

Changer: Why and How Congress Should Preempt

State Student-Athlete Compensation Regimes, 72 Stan.

L. Rev. Online 27, 35 (2019) (arguing preemption “is

likely critical to ensure national uniformity,” and that

it would “compel all states to ‘play by the same set of

rules’ preventing one state from gaining a competitive

advantage”); Alan Untereiner, The Defense of Preemption: A View From the Trenches, 84 Tul. L. Rev. 1267,

1262 (2010) (opining that “multiplicity of government

actors below the federal level virtually ensures that, in

the absence of federal preemption, businesses with

national operations that serve national markets will be

subject to complicated, overlapping, and sometimes

even conflicting legal regimes.’ ”); Frank S. Alexander,

Federal Intervention in Real Estate Finance: Preemption and Federal Common Law, 71 N.C. L. Rev. 294,

340 (1993) (“The overlapping and ambiguous nature of

the constitutional doctrines of preemption and federal

common law has been a primary cause of the chaos in

judicial reasoning and judicial results in real estate

finance cases.”); Charles D. Nyberg, The Need for Uniformity in Food Labeling, Food Drug Cosm. L.J. 229,

229-30 (1985) (“The need for uniformity in government

regulation of the food industry is long-standing and

widely recognized” and noting that the White House

Conference on Food, Nutrition, and Health recommended in 1970 that there be “uniform application of

all regulatory requirements throughout the nation,

enforceable by federal, state, and local officials.”).

4. Further, uniformity facilities international,

as well as interstate, movement of product. See, e.g.,

Nyberg supra, 235 (“It is important to U.S. interests

that the national food policy be articulated and

defended in international policymaking organizations.

Under the present mixed system of federal/state regulation, however, it is difficult for U.S. representatives to

express what the national policy is on number of

important food labeling issues.”). That difficulty is

fostered by a regulatory framework bereft of uniformity. Where manufacturing is no longer a national,

but an international affair, U.S. policy makers must

be able to speak with one voice. Never has this need

for predictability been more urgent given the global

upheaval across all industries from the COVID-19

pandemic.

Opinions such as the one issued by the Mississippi

Supreme Court interfere with the market-driven uniformity, predictability, and efficiency that Congress

intended with preemptive clauses.

---------------------------------♦---------------------------------

CONCLUSION

For all the foregoing reasons, the Court should

grant the Petition.

Respectfully submitted,

PETER O. GLAESSNER

ALLEN GLAESSNER

HAZELWOOD & WERTH LLP

180 Montgomery Street,

Suite 1200

San Francisco, CA 94104

(415) 267-2000

pglaessner@aghwlaw.com

Attorney for Amici Curiae

the Federation of Defense

& Corporate Counsel

September 30, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.