Amicus Curiae Brief — Chemical Specialties Manufacturers Ass'n v. Book

Supreme Court, U.S. |

FILED

No. 91-1957 : JUL 9 1999

OFFICE OF

IN THE ‘iL a

Supreme Court of the United States

OCTOBER TERM, 1991

CHEMICAL SPECIALTIES MANUFACTURERS

ASSOCIATION, INC.,

Petitioner,

V.

CLIFFORD L. ALLENBY; JOHN K. VAN DE KAMP, ESQ.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

CHEMICAL MANUFACTURERS ASSOCIATION

IN SUPPORT OF THE PETITION FOR A WRIT OF CERTIORARI

DAVID F. ZOLL

DONALD D. EVANS

MICHAEL P. WALLS *

CHEMICAL MANUFACTURERS

ASSOCIATION

2501 M STREET, N.W.

WASHINGTON, D.C. 20037

(202) 887-1100

Counsel For Amicus Curiae

JULY 9, 1992 * Counsel of Record

i

Table of Contents

ME Me I vcocnenshoctunschindunstacbasconeuercextunaenaiarudeaunesepens i

Ca ee ee ee iii

UUREIIE E FARIA TATIONS arian nccccscccscnccasnccccvacscccovccceceucacenccs ]

SUMMARY OF REASONS FOR GRANTING THE

PNT sncbaxsninnysnennstbveswennienbminicteaeaiebaiAsanntieniinnkasiaxsonvens 2

I. CERTIORARI SHOULD BE GRANTED BECAUSE THE

NINTH CIRCUIT DECISION HAS A BROAD IMPACT ON

FEDERAL ENVIRONMENTAL, HEALTH AND SAFETY

IEE taniccisincianhnah soexthecnliabarensaseessennnelenadenannceitlesdeninaaticuse 3

Bhs CIEE: scxncdancauunnanenscsibnesncddeckaanteniahkeosassinenhibinkh 4

B. The Ninth Circuit Decision Undermines Federal

Environmental, Health and Safety Law..................... 6

C. The Ninth Circuit Decision Negates This Court's

Recent Pre-emption Decision in Gade. ...................08. 8

II. CERTIORARI SHOULD BE GRANTED TO PREVENT

EROSION OF THE REGULATORY BALANCE ADOPTED

Se IID -vacnnctvenssacinncacsinaninsascldensatsaunewcansbuvenetas 9

A. Proposition 65's Shelf Label Requirement is

Pre-empted by the Plain Language of FIFRA and

PU Mcdsadhbccsekeaeiinkstannadisbbaninaiaaboedaunieguiakadiciininnsie 9

B. Even if Proposition 65's Shelf Warnings are Not

Labeling, They have an Adverse Effect on FIFRA and

FHSA, and are Pre-empted by Federal Law. ............ 10

ii

Ill. THE NINTH CIRCUIT DECISION CONFLICTS WITH

DECISIONS IN OTHER FEDERAL COURTS OF

iii

Table of Authorities

Cases:

Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers,

ee, eee cae Ree (POET Cir, 1GGZ)..........cccseccssevscescesnss 16

Chemical Specialties Manufacturers Ass'n v. Allenby, 958

ED Ss BUPUED visisicncspecsssessnsnccnsensvcsasnnseccet 6,14

Cipollone v. Liggett Group, Inc., __ U.S. __,60 U.S.L.W. 4703

I NS edanasrdccsseuhesvesndinthesensasacens 3,8,9,11,12,16

English v. General Electric Co.,

496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)... 10

Fidelity Federal Savings & Loan Ass'n v. De La Cuesta,

458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)... 9

Gade v. National Solid Wastes Management Ass'n, __ U.S. _.,

60 U.S.L.W. 4587 (June 18, 1992)................. 2,8,9,11,14

International Paper Co. v. Ouellette, 479 U.S. 481,

107 S.Ct. 606, 83 L.Ed.2d & (1967) ..................... 7,10,16

Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305,

i EN BEET BB ccnccvasssveccessccectsnissevecesessecenesesceses 9

Kordel v. United States, 335 U.S. 345, 69 S.Ct. 106,

SS SE CEE cncdsnccnsscessceccssnsccsceseseessesonsancssesess 9,10

Mackey v. Lanier Collection Agency and Service, Inc.,

486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988)...

i eo eames sueepeEsesestebesesaceesnnvercnzess 13,14

Morales v. Trans World Airlines, Inc., __ U.S. _.

60 U.S.L.W. 4444 (June 1, 1992)....................... 11,13,14

iv

New York State Pesticide Coalition v. Jorling, 704

F.Supp. 26 (N.D.N.Y. 1989), affd, 874 F.2d 115 (2d Cir.

PENT sccapeculecascsabcutesdisenicaiesss, Kcaummcuusaineahkesiasnaionwers 15

Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991),

vacated and remanded sub nom. Papas v. Zoecon Corp.,

___ U.S. __, 5960 U.S.L.W. 3870-3871, 3878 (June 29,

RITE i cevcanicainasiasesamsnanenabtveatdeesndsanmnnabenes acess 11,15,16

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct.

RR, TE Ge BOE GROOEE cenversssccvisncsacscrsacensessxnnse 11

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct.

es re Ree Te A eockins dcniecycenecnaxksaesssdcinescecees 5

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108

S.Ct. 1145, 99 L.Ed.2d 316 (1988) ......cccccecsceeeeeeseeee. 10

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct.

BOO, TF LTB GOD (IBGE) o.nessnsvecscsccsccrccccssccctcesccesees 9

Taylor v. General Motors Corp., 875 F.2d 816 (11th

Cir. 1989), cert. denied, 110 S.Ct. 1781 (1990} .......... 11

United States v. Morton, 467 U.S. 822, 104 S.Ct. 2769,

ee ec aa tees 7

Wisconsin Dep't of Industry v. Gould, 475 U.S. 282,

106 S.Ct. 1057, 89 L.Ed. 2d 223 (1986)...................... 16

Wisconsin Public Intervenor v. Mortier, __ U.S. __,

111 S.Ct. 2476, 115 L.Bd.2d S32 (1901) ................040.. 15

Worm v. American Cyanamid Co., __ F.2d __, 1992

U.S.App.LEXIS 14145 (4th Cir. 1992) ..................eeeeee 15

Statutes and Regulations:

Federal Insecticide, Fungicide and Rodenticide Act

7 U.S.C. § 136 et seq. (1988 & Supp. III 1990) ........... 2,4

Ses. Fas Be RD wi avcccsiesesceacancerterdcesiunereaes 5

a Seats: Ge IED bnecsttasnsccepvnsiacncsniecane 5

a Sea Oe BID ec tecesccshecconieeseucuienbenoaes 5

Federal Hazardous Substances Act, 15 U.S.C. § 126i

GR TE, TIE beakicevintenaetentinénaviddanamessitiatesrctitotanenel 2,4

Se, Be tae Ae Be OE bocca sccntvveanssanivadicnasonse B

15 U.S.C. § 1261 note (b)(1)(A); Pub.L.No. 89-756,

§ 4(b)(1)(A); 80 Stat. 1305 (1966) ........................ S

15 U.S.C. § 1261 note (b)(1)(B); Pub.L.No. 89-756,

§ 4(b)(1)(B); 80 Stat. 1305 (1966) ..................0..... 6

Safe Drinking Water and Toxic Substances Act

(Proposition 65), Cal. Health & Safety Code § 25249 et

ON. TEE TD. Re carcesccenntacicsecs ects eee passim

Consumer Product Safety Act, 15 U.S.C. § 2051 et seq.

(1988 & Supp. 1992) § 26, 15 U.S.C. § 2075................ 6

Clean Water Act, 33 U.S.C. § 1362 et seq. (1988)........... 6

RE ED, Se WS Dt AD a sevnsicenececesccsancucincnes 7

RG, er Si Oe CO dintiidersisinticittetcaratleian 7

Occupational Safety and Health Act, 29 U.S.C. § 651 et

OO, Te banka sccewnicnassebeeniniinn cntiadsenin cae 8

iy ee as BUY encaviicsnviecntsanimieteiconeienamiaaenes 8

Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq. (1988)

es ae Sern ee I nce skicn accra ccccaucecenanandneuneien 7

Toxic Substances Control Act, 15 U.S.C. § 6901 et seq.

CRGere SS BGR TERA Ie F nnknsitiinccnccaciconscscctenaecceenseni 7

vi

Cok Concie Bime, G20. Ge, RIGGS vs vnc sccdsccrcsensssacacccuns 12

Miscellaneous:

Petition for Certiorari_ for Chemical Specialities

DIPRACNEOTE BAD vasisiscicsrtnitiicmucmuumaanes 4,5,13

McDonald, Silica, Silicosis and Lung Cancer, (Editorial)

46 Brit. J. Indus. Medicine 289-291 (1989)................. 12

Cal-EPA Considering New Method for Setting No

Significant Risk Levels, Chem. Reg. Rep. (BNA) 798 (Sept.

Pls BEDS cacessccssesisntsininsssdicecdinnuasesstaneecenae eee 12

No. 91-1957

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

Chemical Specialties Manufacturers

Association, Inc.

Petitioner,

Vv.

Clifford L. Allenby; John K. Van De Kamp, Esq.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

CHEMICAL MANUFACTURERS ASSOCIATION

IN SUPPORT OF THE PETITION FOR WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE

The Chemical Manufacturers Association (CMA) is a

non-profit trade association whose member companies repre-

sent 90 percent of the productive capacity for basic indus-

trial chemicals in the United States. CMA member compa-

nies are located throughout the United States, and are sub-

ject to many federal and State environmental regulations,

including those governing the labeling of pesticides and

hazardous substances that are involved in this case. The

federal.and State regulatory structures impact the ability of

chemical companies to market their products across the

country. The Association is filing this amicus brief because

of its strong interest in clarifying the effect of federal law on

State regulations.

2

Pursuant to Rule 37.2 of the Rules of this Court, CMA

requested and received the written consent of all parties to

file this amicus brief. The consents of Petitioner and Respon-

dents accompany this brief.

If the Court of Appeals’ decision stands, substantial new

regulatory authority will effectively be vested in State govern-

ments despite the dictates of federal law. The balance cre-

ated by Congress in shared federal-State authority will be

upset under the Ninth Circuit decision.

In addition, the decision exacerbates the impact of

multiple State regulations, despite the existence of compre-

hensive, uniform programs adopted by Congress. The doc-

trine of federal pre-emption and the very principles of Feder-

alism promote uniformity in those areas, as in this case, that

have significant health and safety implications. The Ninth

Circuit decision will undermine the purposes and objectives

of the federal labeling requirements for pesticides and con-

sumer chemicals.

SUMMARY OF REASONS FOR GRANTING THE PETITION

The Court should grant the petition for certiorari be-

cause the Ninth Circuit decision upsets the federal-State

balance of authority adopted by Congress in federal pro-

grams related to environmental, health and safety protection.

If the decision stands, Congressional limits on the exercise of

State regulatory authority will be undernnined, threatening

the existence of uniform, comprehensive federal regulatory

programs. The Ninth Circuit decision also undercuts this

Court's recent decision in Gade v. National Solid Wastes

Management Ass'n, ____ U.S. __, 60 U.S.L.W. 4587 (June

18, 1992), and therefore merits the Court's review.

Regardless of the pre-emption category under which this

case is analyzed, the clear text of the Federal Insecticide,

Fungicide and Rodenticide Act (FIFRA) and the Federal Haz-

ardous Substances Act (FHSA) pre-empt any state enactment

3

relating to labeling for pesticides and consumer chemical

products. FIFRA and FHSA reflect a Congressional mandate

for shared federal-State authority over pesticides and con-

sumer chemicals. The notable exception to that shared

power is labeling, where federal law controls exclusively. The

effect of the Ninth Circuit decision is to endorse conflicting

regulatory results, transferring control over labeling to State

governments, contrary to Congressional intent.

The Ninth Circuit decision should also be reviewed by

this Court because it conflicts with decisions in other federal

Circuit Courts of Appeal. Certiorari should be granted to

provide States, the regulated community, and the lower

courts guidance on the pre-emption standard applied under

FIFRA and FHSA.

ARGUMENT

I. CERTIORARI SHOULD BE GRANTED BECAUSE THE

NINTH CIRCUIT DECISION HAS A BROAD IMPACT ON

FEDERAL ENVIRONMENTAL, HEALTH AND SAFETY

LAWS

This case involves an issue that has increasingly occu-

pied the federal courts: pre-emption of State law by federal

law. Since January 1, 1989, more than 395 cases raising

pre-emption issues have been brought before the Supreme

Court and the Courts of Appeal. Although these cases did

not all involve the pre-emptive effect of the same statute, the

number of cases is testimony to the uncertainties which

reign in federal pre-emption analysis. See Cipollone v. Liggett

Group, Inc., ____ U.S. ___, 60 U.S.L.W. 4703 (June 24,

1992) (Scalia, J., concurring in part and dissenting in part).

The Ninth Circuit decision will compound those uncertainties

by giving pre-emptive effect only to the most precise, detailed

statements of Congressional intent.

A. Background

In 1986, the State of California enacted the Safe Drink-

ing Water and Toxic Substances Act (Proposition 65).! The

Act requires the State to list substances considered to be

carcinogens or reproductive toxins. Id. Manufacturers of

products containing these substances -- regardless of con-

centration or actual toxic effect -- are required to provide

warnings about the content of the products. See Pet. for

Cert. at 3-5. Exceptions from the warning requirements are

available if the manufacturer can show no risk, under ex-

tremely conservative risk and exposure assumptions. Propo-

sition 65 forces manufacturers to provide point-of-sale label-

ing. Id. at 5.

The petitioner, the Chemical Specialties Manufacturers

Association (CSMA), brought suit for declaratory judgment,

arguing that shelf labeling required under Proposition 65 is

pre-empted by the specific language of the Federal Insecti-

cide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136

et seq. and the Federal Hazardous Substances Act (FHSA),

15 U.S.C. § 1261 et seq.. FIFRA and FHSA impose a com-

prehensive federal precautionary labeling system for pesti-

cides and consumer chemicals, respectively.

The main objectives of the FIFRA and FHSA regulatory

schemes are the protection of human health, safety, and the

environment. In the area of labeling, the federal government

has sole regulatory discretion. As first enacted in 1947,

FIFRA was primarily a licensing and labeling statute.

! Because Proposition 65 imposes an undue burden on interstate com-

merce, CMA filed an action for declaratory judgment seeking federal Occupa-

tional Safety and Health Act (OSHA) pre-emption of the workplace warning

requirement. Chemical Manufacturers Ass'n et al. v. Cal. Health and Welfare

Agency, et al, No.-CIVS -88 - 1615 LKK-JFM (E.D. Cal.). The case is currently

stayed by order of the District Court pending federal OSHA's review of

California's state plan amendment purporting to adopt the Proposition 65

workplace requirements.

5

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991 (1984).

Due to public concern about the safety of pesticides and

their effect on the environment, Congress amended FIFRA

several times, transforming it from a simple labeling law into

a comprehensive regulatory statute. Id. Today, FIFRA is a

carefully crafted system of regulatory procedures, substan-

tive rights, and obligations that balances the needs of inter-

state commerce with the public concern for safety. Having

amended the Act five times (1972, 1975, 1978, 1980, 1988)

in the last 20 years, Congress has given the structure of the

Act careful consideration and reflection.

FIFRA permits State governments to assert jurisdiction

over the sale or use of a regulated product. FIFRA § 24(a); 7

U.S.C. § 136v(a). A State's regulatory authority is limited

only by an express prohibition on State labeling or packaging

requirements "in addition to or different from" the FIFRA

requirements. Id., § 24(b); 7 U.S.C. § 136v(b). Labeling, in

turn, is defined by FIFRA as “all labels and all other written,

printed or graphic matter’ that accompanies the product at

any time or to which some reference is made. Id., § 2(p)(2); 7

U.S.C. § 136(p)(2) (emphasis added).

The U.S. Environmental Protection Agency (EPA) is

charged with implementing FIFRA. EPA conducts detailed

scientific assessments to determine whether product risk

and exposures warrant specific warning language. See Pet.

for Cert. at 10-11.

Like FIFRA, the FHSA is a comprehensive regulatory

statute which vests exclusive authority over labeling of con-

sumer chemicals (except pesticides) with the federal govern-

ment. Congress' commitment to federal control over labeling

was demonstrated six years after enactment of FIFRA. The

Act was amended to pre-empt State labeling requirements

not identical with federal law but covering the same risks.

15 U.S.C. § 1261 note (b)(1)(A); Pub. L. No. 89-756 §

4(b)(1)(A); 80 Stat. 1305 (1966).

eT

FHSA governs the sale, use, packaging and labeling of

consumer chemicals. As in FIFRA, labeling under the FHSA

includes material affixed to products or which accompany

the product. FHSA § 2(n); 15 U.S.C. § 1261(n). State au-

thority is limited to packaging or use requirements, subject

to approval from the federal government. Id. § 1261 note

(b)(1)(B); Pub. L. 89-756 § 4(b)(1)(B).

The FHSA complements the authority of the Consumer

Product Safety Commission (CPSC) to regulate chronic haz-

ards -- like carcinogens -- under the Consumer Product

Safety Act (CPSA), 15 U.S.C. § 2051 et seq. Notably, the

CPSA also restricts State labeling regulations not identical

with CPSC requirements. Id., § 2075. The CPSC is required

to conduct comprehensive assessments of the data on chemi-

cals before issuing warning requirements.

B. The Ninth Circuit Decision Undermines Federal

Environmental, Health and Safety Law :

The Ninth Circuit found that FIFRA and FHSA did not

pre-empt Proposition 65 because the required warnings were

not "labeling" as that term is used in the federal statutes.

Chemical Specialties Manufacturers Ass'n v. Allenby, 958 F.

2d 941 (9th Cir. 1992). This unnecessarily narrow reading

of the statutes threatens the fundamental balance of regula-

tory authority Congress has adopted throughout the major

environmental, health and safety laws.

The United States has the most comprehensive system

of environmental law in the world. In enacting these laws,

Congress sought to reconcile the legitimate police powers of

the States with the federal government's interest in environ-

mental protection, public health and safety, and interstate

commerce. In virtually every environmental statute there is

some provision for State divergence from the Congression-

ally-established standard, subject however to federal control

in the areas most critical to the federal objective. See, e.g.,

Clean Water Act § 510, 33 U.S.C. 1370 (State effluent limita-

7

lions); Solid Waste Disposal Act § 9004, 42 U.S.C. § 6991c

(State administration of underground storage tank program);

Toxic Substances Control Act § 18, 15 U.S.C. § 2617 (condi-

tions for State regulation of toxic substances). The approach

is consistent with the Constitutional requirement to give

effect to the State's police powers, while maintaining a uni-

form standard in the areas of national concern (i.e., inter-

state commerce).

The Ninth Circuit, however, would read Congress’ at-

tempts to preclude State regulation with a jaundiced eye. In

taking a needlessly narrow view of statutory pre-emption

provisions, rather than the statute as a whole, United States

v. Morton, 467 U.S. 822, 828 (1984), the Ninth Circuit deci-

sion has the effect of requiring Congress to speak with a

detail that strains the bounds of credulity, if not practicality.

For example, the Clean Water Act prohibits States from

adopting or enforcing any effluent limitation that is less

stringent than those in effect under the federal program.

Clean Water Act § 510, 33 U.S.C. § 1370 (1972). See also

International Paper Co. v. Ouellette, 479 U.S. 481, 490 (1987)

(Clean Water Act pre-emption of state common law). The Act

further defines effluent limitations as State or federal "re-

strictions" on amounts discharged to water. Id., § 502(11),

33 U.S.C. § 1362(11). On the face of this provision, the

federal standards establish a regulatory minimum. Suppose

next that a State determines that the federal standard has

had a significant economic impact, and that a lesser effluent

limitation would preserve industry and jobs. The State could

-- in the guise of economic development -- adopt a lower

"discharge rate" for its industry, arguing that the lower rate

does not amount to a restriction. This result comports with

the narrow approach taken by the Ninth Circuit, yet com-

pletely and utterly defeats the clear purpose intended by

Congress.

C. The Ninth Circuit Decision Negates This Court's

Recent Pre-emption Decision in Gade.

Less than one month ago, the Court held that the federal

Cccupational Safety and Health Act (OSHA), 29 U.S.C. §

651-678 (1970), pre-empts State enactments which have an

impact on federal workplace standards. Gade v. National

Solid Wastes Management Ass‘n, ___ U.S. -__, 60 U.S.L.W.

4587 (June 18, 1992). The State law at issue in Gade was

arguably consistent with the federal standards, although

broader in scope than the federal requirements. The simi-

larities between OSHA and the statutes involved in the

present petition suggest that the result in Gade will be un-—

dermined unless the Court grants certiorari.

Like FIFRA and FHSA, OSHA was intended to impose a

degree of federal control in an area subject to multiple,

potentially conflicting regulations. OSHA contains, like

FIFRA and FHSA, a system of shared federal-State authority

over workplace health and safety. As in FIFRA and FHSA,

OSHA carefully limits the role of the States in regulating

occupational safety and health. State workplace standards

on subjects for which a federal standard is in effect are

expressly pre-empted, similar to pre-emption under FIFRA

and FHSA. A State may assert regulatory authority under

OSHA only by adopting a state plan approved by the federal

agency, with more stringent State regulations requiring

OSHA's express approval, akin to the procedure required

under the FHSA. OSHA § 18; 29 U.S.C. § 667.

Under Gade, even State standards which supplement

the federal statutory objectives and purposes are pre-

empted. The Ninth Circuit's narrow construction, read in

conjunction with the Court's recent decision in Cipollone,__

U.S.___, 60 U.S.L.W. 4703 (June 24, 1992), could lead to

exactly the inconsistent result identified by Justice Scalia:

9

If taken seriously, it would mean, for example, that if a federal

consumer protection law provides that no state agency or court

shall assert jurisdiction under state law over a workplace safety

issue with respect to which a federal standard is in effect, then

a State agency operating under a law dealing with a subject

other than workplace safety (e.g., consumer protection) could

impose requirements entirely contrary to federal law -- forbid-

ding, for example, the use of certain safety equipment that

federal law requires . . . . [T]he result is extraordinary: The

Statute that says anything about pre-emption must say every-

thing; and it must do with great exactitude, as any ambiguity

conceming its scope will be read in favor of preserving state

power. /d.at___, 60 U.S.L.W. at 4715 (Scalia, J., concurring

in part and dissenting in part) (emphasis in original).

Il. CERTIORARI SHOULD BE GRANTED TO PREVENT

EROSION OF THE REGULATORY BALANCE ADOPTED

BY CONGRESS

A. Proposition 65's Shelf Labeling Requirement is

Pre-empted by the Plain Language of FIFRA and

FHSA.

Regardless of whether a particular claim of pre-emption

is categorized as express or implied, the "ultimate task in

any pre-emption case is to determine whether Siate regula-

tion is consistent with the structure and purpose of the

Statute as a whole." Gade v. National Solid Wastes Manage-

ment Ass'n, U.S. at__, 60 U.S.L.W. at 4590. If the

language and structure of a federal enactment clearly limit a

State's ability to regulate, pre-emption must be found. Jones

v. Rath Packing Co., 430 U.S. 519, 525 (1977); Shaw v. Delta

Air Lines, Inc., 463 U.S. 85, 95 (1983); Fidelity Federal Sav-

ings & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 152-153

(1982).

Thus, the Court need go no further than a simple analy-

sis of FIFRA and FHSA to find pre-emption. Shelf labeling

regarding product content is clearly “other written, printed or

graphic matter." The warnings accompany the product as

they are present at the point-of-sale. See Kordel v. United

10

States, 335 U.S. 345 (1948) (supplemental literature consti-

tutes labeling under the federal Food Drug & Cosmetic Act).

The Proposition 65 warnings therefore constitute labeling for

the purposes of FIFRA and FHSA, and are pre-empted.

The content of Proposition 65 shelf labeling is not

dispositive. Because shelf labeling is in addition to and not

to the federal labels -- a possibility recognized and

prohibited by Congress -- the state regulation is pre-empted.

The Ninth Circuit decision has the result of holding that

material not physically affixed to the container does not

constitute labeling -- a result clearly inconsistent with the

terms of FIFRA and FHSA and this Court's prior reasoning.

The petition for certiorari should be granted to prevent the

manifestly inaccurate reading given FIFRA and FHSA by the

Ninth Circuit.

B. Even if Proposition 65's Shelf Warnings are Not

Labeling, They Have an Adverse Effect on FIFRA

and FHSA, and are Pre-empted by Federal Law.

Even assuming that Proposition 65 shelf warnings are

not considered labeling pursuant to FIFRA and FHSA, the

warning requirement is nevertheless impliedly pre-empted by

federal law.

Implied pre-emption has been established by this Court

in any number of formulations. The policies and purposes

served by the federal law, and implicated by the State enact-

ment, have been dispositive. Schneidewind v. ANR Pipeline

Co., 485 U.S. 293, 299-300 (1988). The impact of State law

on Congress’ chosen regulatory method has been considered.

English v. General Electric Co., 496 U.S. 72, 110 S. Ct. 2270,

2275 (1990). The degree to which States can diverge from

the federal regime has been considered. International Paper

Co. v. Quellette, 479 U.S. at 476. The various formulations

are all applied in determining whether the State law "stands

as an obstacle” to the federal regime, or regulates in a field

occupied by the federal law, the two basic standards in

1l

implied pre-emption analysis. See Cipollone, ____U.S. at ___

60 U.S.L.W. at 4706-4707.

The common thread in these apparently different ap-

proaches to implied pre-emption analysis is the effect of the

state law on the integrity of the federal program or those

regulated.? Id. at___, 60 U.S.L.W. at 4709-10. As the

Eleventh Circuit aptly stated, "it is possible to infer pre-

emptive intent solely from effects." Papas v. UpJohn Co., 926

F.2d 1019 (11th Cir. 1991), vacated and remanded sub nom.

Papas v. Zoecon Corp., 60 U.S.L.W. 3870-3871, 3878 (June

29, 1992) (quoting Taylor v. General Motors Corp., 875 F.2d

816, 826 (11th Cir. 1989), cert. denied, 110 S. Ct. 1781

(1990)) (emphasis added). In and of itself an "effects" test is

not dispositive of a pre-emption claim, but assists in devel-

oping the type of information needed to balance the pre-

sumption in favor of state law that applies in pre-emption

cases. Cipollone, ___U.S. at __, 60 U.S.L.W. at 4706 (quot-

ing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947).

In Morales v. Trans World Airlines, Inc., 60 U.S.L.W.

4444 (June 1, 1992), this Court construed the preemptive

effect of the Airline Deregulation Act on state guidelines

related to airline advertising. In finding that the ADA pre-

empted the state guidelines, the Court looked to the impact

of the state rules on the regulated community and the in-

tended reach of the federal law. Id. at 4446-47. The poten-

2As the Court has stated, the label applied to pre-emption analysis in a given

case may have substantive implications. Gade at ___U.S. at___, 60 U.S.L.W.

at 4590. This case, like Gade, does not turn on whether pre-emption is express

or implied, but indeed on the very effects Congress sought to avoid in ——e

a comprehensive labeling regime for consumer chemicals.

12

tial economic effect of the state guidelines was also impor-

tant in this analysis.*

In the present case, Propostion 65 has a direct, signifi-

cant impact on the integrity of the FIFRA and FHSA regula-

tory regimes, as well as substantial impact on chemical

manufacturers.

Under Proposition 65, the State of California summarily

lists products considered to be carcinogens and reproductive

toxins by other organizations, such as the International

Association for Research on Cancer (IARC). Cal. Code Regs.

tit. 22, § 12601. Similarly, proposed regulations will estab-

lish an expedited method for setting Proposition 65 regula-

tory levels. See Cal-EPA Considering New Method _for Seiting

No Significant Risk Levels, Chem. Reg. Rep. (BNA) 798 (Sept.

20, 1991). No independent scientific assessment is con-

ducted in the listing process. The summary listing proce-

dures do an injustice to the scientific assessments made

pursuant to FIFRA and FHSA. :

Crystalline silica is a good example of the absurd re-

sults under Proposition 65 which impact the federal labeling

programs. IARC has recently listed crystalline silica as a

"probable" carcinogen. Crystalline silica is one of the most

ubiquitous substances on earth, and constitutes a large

percentage of the earth's crust. The common form of the

chemical is sand, such as that used in children's sandboxes

or in construction applications. The evidence that crystalline

silica is a human carcinogen is limited at best. See, e.g.,

McDonald, Silica, Silicosis and Lung Cancer (Editorial), 46

Brit. J. Indus. Medicine 289-91 (1989).

*Notably, the Morales decision adopts a broader construction of the pre-

emption provision than would be suggested under the Ninth Circuit's decision

below. See Cipollone, _ U.S. at___ , 60 U.S.L.W. at 4715 (Scalia, J., concurring

in part and dissenting in part).

13

The Consumer Product Safety Commission (CPSC),

which administers the FHSA, has not issued any require-

ment that sand for children's use be labeled for its health

effects (although it would clearly be within CPSC's purview to

do so). At least at this juncture, the CPSC has not deter-

mined that sand warrants a warning label about its theoreti-

cal health effects.

Proposition 65 will require inflexible warnings of the

theoretical carcinogenic effect of sand. In the absence of a

FHSA warning, the Proposition 65 warning supplants the

CPSC's expertise and judgment. The FHSA labeling pro-

gram, designed to foster confidence and safety in consumer

products nationwide, is undermined, and the public sub-

jected to warnings of negligible risks. Over-labeling creates

the risk of triggering information overload, de-emphasizes

true risks, and is ultimately harmful to health and safety.

Not only does Proposition 65 undermine the role of

science and the role of the federal agency in regulatory deci-

sions, the California law has a clear impact on interstate

commerce. Congress’ choices in FIFRA and FHSA reflect an

implicit balancing between health and safety needs and

interstate commerce. As well noted in the petition for certio-

rari, the Ninth Circuit decision has a clear effect on interstate

commerce. Pet. for Cert. at 16-17, 26-27. Other states may

be persuaded to adopt similar or inconsistent regulations

following a broad grant of authority like that contained in the

Ninth Circuit holding. The resulting distortions of the federal

labeling system, and health and safety protection, are exactly

the effect Congress sought to prevent with uniform labeling

requirements under FIFRA and FHSA.

Contrary to the Ninth Circuit's decision, the State law

need not be inconsistent with the federal law in order to infer

pre-emption. Morales, ___ U.S. at ___, 60 U.S.L.W. at 4447:

Mackey v. Lanier Collection Agency and Service, Inc., 486

Va

U.S. 825, 829 (1988) (pre-emption of state retirement law

that was arguably consistent with federal law). It is enough

that the state law impact the federal program in some way.

Even where the state and federal programs share a

common goal, pre-emption may be found. In Gade, compli-

ance with both the federal and state law was possible.

__U.S. at __, 60 U.S.L.W. at 4591. The fact that the State

regulation had another purpose arguably within the State's

police powers (hazard communication to the public) was not

dispositive. Id. The effect of the State regulation on the

administration of the federal occupational safety and health

program, and on the regulated industry, controlled.

The decision of the Ninth Circuit that the regulated

community can comply with both Proposition 65, and FIFRA

and FHSA, is plainly at odds with the decisions in Morales,

Gade and Mackey. See Chemical Specialties Mantifacturers

Ass'n. v. Allenby, 958 F.2d at 948-949. Although the Ninth

Circuit was correct to look at compliance as a factor in deter-

mining the effect of Proposition 65's labeling requirement,

that factor alone does not decide the pre-emptive effect of

federal law on state law. Proposition 65 clearly has an im-

pact on the federal regulatory structure for consumer chemi-

cals, and implicates interstate commerce. The petition for

certiorari should therefore be granted.

Ill. THE NINTH CIRCUIT DECISION CONFLICTS WITH

DECISIONS IN OTHER FEDERAL COURTS OF APPEAL

The Ninth Circuit's decision employed no careful analy-

sis of the structure or purpose of FIFRA, or of the effect of

the State enactment on Congress’ chosen regulatory scheme.

The Ninth Circuit decision simply and superficially trans-

forms all FIFRA and FHSA pre-emption questions into a

narrow review of what constitutes labeling. The Court

should grant certiorari to provide guidance to States, the

regulated community, and the lower courts on the FIFRA and

FHSA preemption standards.

15

New York State Pesticide Coalition v. Jorling, 874 F.2d

115 (2d Cir. 1989) provides an example of an analysis

Starkly at odds with the Ninth Circuit decision. Jorling

involved a state requirement that pesticide applicators pro-

vide public notice of their activities. According to the Second

Circuit, the notices provided by professional pesticide appli-

cators were not labeling, but rather a notification program.

Id. at 119. By contrast, Proposition 65 shelf labeling falls

more readily into the labeling area in which State activity is

prohibited; shelf labeling has a closer relationship to prod-

ucts than the conditions for chemical use. Id.

The Second Circuit held that FIFRA did not pre-empt the

state use regulation. The Jorling Court had a clear under-

standing that labeling necessarily must be considéred in the

relevant circumstances. Id. at 119. The Jorling Court did

nothing to disturb the understanding that the federal govern-

ment had exclusive authority over labeling, or that state

regulation may have have a negative effect on the FIFRA

regulatory regime. Id. at 118-119. See also New York Pesti-

cide Coalition v. Jorling, 704 F. Supp. 26, 29-30 (1989).

This Court has clearly indicated that local and state’

regulation of labeling would fall within the area pre-empted

by FIFRA. Wisconsin Public Intervenor v. Mortier, 111 S. Ct.

2476 (1991). The Court distinguished local use permit

regulations from labeling: “local use regulations -- unlike

labeling or certification -- do not fall within an area that

FIFRA's ‘program’ pre-empts or even plainly addresses". Id.

at 2487. Proposition 65 shelf warnings are clearly not use

restrictions of the type approved in Jorling or Mortier, but are

in fact labeling.

The Eleventh Circuit has also expressed a view on FIFRA

pre-emption, holding that FIFRA impliedly pre-empts state

common law tort claims for inadequate labeling. Papas v.

Upjohn Co., 926 F.2d at 1021. This view is shared by the

Fourth and Tenth Circuits. Worm v. American Cyanamid Co.,

16

__ F. 2d__, 1992 U.S. App. LEXIS 14154 (4th Cir. 1992);

Arkansas Platte & Gulf Partnership v. Van Waters & Rogers

Inc., 959 F.2d 158 (10th Cir. 1992).

Common law tort judgments have as much of a regula-

tory effect as any other form of state enactment. Cipollone,

__U.S. at __, 60 U.S.L.W. at 4708 (plurality opinion). See

International Paper Co. v. Ouellette, 479 U.S. 481 (1987);

Wisconsin Dep't of Industry v. Gould, Inc., 475 U.S. 282

(1986). The Eleventh Circuit decision found that to the

extent a tort judgment can be seen to impose a labeling

requirement, FIFRA pre-empted the action. Papas, 926 F.2d

at 1021.

Although this Court has recently remanded the Papas

case to the Eleventh Circuit for further consideration in light

of Cipollone, 60 U.S.L.W. 3878 (June 29, 1992), the prior

decision recognized the strong federal role in FIFRA: "The

statute's language, by itself, is a powerful limit on state

power over labeling." Papas, 926 F. 2d at 1023. In sharp

contrast, the Ninth Circuit decision has the effect of approv-

ing all state regulation regardless of its impact on the federal

labeling programs. Because of the potential for confusion

arising from the various circuit court views, the petition for

certiorari should be granted.

17

CONCLUSION

For the reasons stated above, the Petition for a Writ of

Certiorari filed by the Chemical Specialties Manufacturers

Association should be granted.

Respectfully submitted,

David F. Zoll

Donald D. Evans

Michael P. Walls*

Chemical Manufacturers

Association

2501 M Street, N.W.

Washington, D.C. 20037

(202) 887-1100

Counsel for Amicus Curiae

* Counsel of Record

APPENDIX

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July -6, 1992

LAWRENCE S. EBNER

OiMECST Siar (208) 788-1727

Michael P. Walls, Esq.

Senior Assistant General Counsel

Chemical Manufacturers Association

2501 M Street, N.W.

Washington, DC 20037

Res Chemical Specialties Manufacturers Association v.

Allenby, No. 91-1957

Dear Mr. Walls:

On behalf of the Chemical Specialties Manufacturers

Association, we hereby consent to the filing of an amicus curiae

brief by the Chemical Manufacturers Association in Support of the

Petition for a Writ of Certiorari.

Sincerel

e s.

rney for Chemical Special

Manufacturers Association

L

A

cc: Stephen S. Kellner, Esq.

LSEtpy

DANIEL E. LUNGREN State of California

Attorney General DEPARTMENT OF JUSTICE

2101 WEBSTER STREET, 12th FLOOR

OAKLAND, CA 94612

(510) 464-4200

PACSIMILE:(510) 464-4020

(510) 464-1364

‘

June 29, 1992

Michael P. Walls

Senior Assistant General Counsel’

Chemical Manufacturers Association

2501 M Street, N.W.

Washington, D.C. 20037

RE: Chemical Specialties Manufacturers Ass’‘n v. Allenby;

Petition for Certiorari (Supreme Court No. 91-1957)

Dear Mr. Walls:

Respondents consent to the Chemical Manufacturers

Association filing an amicus brief in support of the Petition for

Certiorari in this matter.

Sincerely,

DANIEL E. LUNGREN

Attorney General

EDWARD G. WEIL

Deputy Attorney General

cc: Charles O'Connor, III (Attorney for Petitioner)