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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 825

## Text

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0775%3A4. Public record. Not legal advice.