FEDERAL PREEMPTION
OF
CALIFORNIA’S PROPOSITION 65
Prop 65 News Conference 2003
Sacramento, California
June 2, 2003
Chris Locke
Star Lightner
Farella Braun + Martel LLP
235 Montgomery Street
San Francisco, CA 94104
Tel. (415) 954-4400
www.fbm.com
I.
INTRODUCTION
California's Safe Drinking Water and Toxic Exposure Act, popularly known as
Proposition 65 ("Proposition 65"), was enacted by the voters in 1986.1 The statute
requires businesses with 10 or more employees to provide a warning of exposure to any
chemical "known to the State of California" to cause cancer or birth defects (commonly
referred to as "listed chemicals"), and prohibits discharge of any such chemical to a
source of drinking water.
Actions for alleged violations can be brought by government enforcement
agencies or by "private attorneys general" following notice to the businesses and to the
government. Most Proposition 65 litigation is brought by private attorneys,
environmental groups and consumer groups. Courts are authorized by the statute to
impose injunctive relief, order civil penalties of up to $2,500 per day of each violation,
and award attorney’s fees under California law. Proposition 65 plaintiffs are also allowed
to retain 25 percent of civil penalties that are imposed, the so-called "bounty hunter"
provision.
Proposition 65 actions frequently include claims of "unfair competition" under
California Business & Professions Code § 17200. In such claims, plaintiffs contend that
businesses that fail to comply with Proposition 65 obtain an unfair competitive advantage
over compliant businesses. The Business & Professions Code provide additional
remedies to a prevailing party, including restitution, injunctive relief, disgorgement of
profits and recovery of legal fees and costs.
The majority of Proposition 65 cases allege a failure to warn consumers of risks
associated with exposures to certain products ("consumer exposures"). A smaller number
of cases allege failure to warn employees of on-the-job exposures to chemicals used in
the manufacturing process ("occupational exposures"), or failure to warn the general
public regarding exposures to chemicals allegedly emanating from facilities
("environmental exposures"). A few cases have involved Proposition 65’s "discharge"
prohibition, alleging discharge of a listed chemical to a source of drinking water.
Like other state statutes intended to protect health and safety, many of the
requirements of Proposition 65 are also addressed by federal statutes. As a result, the
statute has been challenged as preempted by federal law in a variety of settings.
II.
THE PREEMPTION DOCTRINE
There are three settings in which preemption can be invoked to override a state's
use of its police powers: (1) explicit congressional statutory preemption; (2) implicit
preemption, where the federal government occupies the entire field of regulation; and (3)
where state and federal law conflict.
1
Health & Safety Code § 25249.5 et seq.
1
There is a general presumption against the conclusion that state law is preempted
by federal law.2 Nevertheless, for products shipped in interstate commerce, the federal
government may be in the best position to regulate, both to achieve consistency and
uniformity in any required warnings and in enforcing compliance with such warning
requirements.
III.
PREEMPTION AND PROPOSITION 65
Proposition 65 is susceptible to preemption by several federal statutes addressing
environmental, health and safety issues relating to products shipped in interstate
commerce and safety in the workplace.
A.
Occupational Warnings
The preemption question often arises with alleged occupational exposures.
Proposition 65's warning requirement obligates employers to warn their employees about
potential exposures to listed chemicals. However, the federal Occupational Safety and
Health Act3 regulates the same types of chemicals and exposures as those regulated by
Proposition 65. Under OSHA, state occupational health and safety warnings are
preempted unless established in conformance with a federally-approved state plan.4
Thus, OSHA could have preempted the provisions of Proposition 65 had it not been for
the existence of a state occupational safety and health law incorporated in an approved
state plan.5
In 1973 the California legislature had enacted the California Occupational Safety
and Health Act (“Cal/OSHA”), which included a state plan that was later approved.6
Then, in 1988, the voters approved California's Proposition 97, which amended
California's Labor Code to require that the state plan be consistent with the provisions of
state law governing occupational safety and health, including Proposition 65.7
The California Occupational Safety and Health Standards Board initially refused
to incorporate the warning provisions of Proposition 65 into California's state plan. A
lawsuit was brought by a coalition of labor and environmental groups challenging the
Board’s refusal and seeking to ensure that Proposition 65's occupational exposure
standards and enforcement scheme were included in California's Occupational Safety and
Health Plan. California Labor Federation, AFL-CIO v. California Occupational Safety
and Health Standards Board. 8 The Court held that Proposition 65 was a state law
governing occupational safety and health, the provisions of which had to be incorporated
2
Chemical Specialties Mfrs. Ass'n, Inc. v. Clifford Allenby, 958 F.2d 941, 943 (9th Cir. 1992).
See 29 U.S.C. § 667 et seq. (1994).
4 See 29 U.S.C. § 667 (1994); 29 C.F.R. § 1910.1200 (2000).
5 See California Labor Federation, AFL-CIO v. California Occupational Safety and Health Standards Board, 221
Cal.App.3d 1547, 1553 (1990).
6 See Cal. Labor Code § 50.7.
7 See Cal. Labor Code § 6357.
8 221 Cal.App.3d at 1552-1553.
3
2
into an approved state plan to avoid preemption.9
California's state plan subsequently received federal approval on June 20, 1997.10
As a result, the question of federal preemption of occupational warnings under
Proposition 65 was deferred.
However, in 1997 the United States Court of Appeals for the Ninth Circuit held
that because the federal statute evidenced Congress' clear intention to occupy the entire
field of hazard communication, any state regulations under Proposition 65 not
incorporated into the state hazard communication plan were preempted by the federal
statute.11 Regulations promulgated by the Office of Environmental Health Hazard
Assessment under Proposition 65 that were not incorporated into the state plan were
found by the Court to be preempted by federal OSHA.12
Thus, in order to comply with the occupational warning provisions of Proposition
65, California businesses may either follow the Hazard Communication provisions of the
state plan under Cal/OSHA or the regulations promulgated pursuant to Proposition 65 to
the extent they are incorporated in the state plan.
B.
Other Preemption Challenges to Proposition 65
1.
Standards For Preemption
Two key Supreme Court cases have set the stage for a determination of federal
preemption of consumer exposure claims under Proposition 65: Cipollone v. Liggett13 and
Medtronic v. Lohr.14 Cipollone v. Liggett involved a state tort claim alleging that the
defendant, a cigarette manufacturer, had failed to warn consumers about the hazards of
smoking, in violation of New Jersey common law. The failure to warn claim was
challenged by the defendant as preempted by the Federal Cigarette Labeling and
Advertising Act.15 Section 2 of the Act declared the statute's two purposes: (1)
adequately informing the public that cigarette smoking may be hazardous to health, and
(2) protecting the national economy from the burden imposed by diverse, nonuniform,
and confusing cigarette labeling and advertising regulations.16 To achieve these
objectives, the Act required that any cigarettes sold or distributed in the United States
have packaging bearing a conspicuous label stating: "Caution: Cigarette Smoking May
Be Hazardous to Your Health."17
The Act also included an express preemption clause, amended in 1969 by the
Id. at 1557-1558.
See 62 F.R. § 31159; Cal. Code Regs. tit. 8, § 5194(6).
11 See Industrial Truck Association v. Henry, 125 F.3d 1305 (9th Cir. 1997).
12 Id.
13 Cipollone v. Liggett, 505 U.S. 504 (1992).
14 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).
15 See Cipollone v. Liggett, 505 U.S. 504.
16 15 U.S.C. 1331.
17 Id. § 1333.
9
10
3
Public Health Cigarette Smoking Act of 1969, that provided in relevant part:
(b) No requirement or prohibition based on smoking and
health shall be imposed under State law with respect to the
advertising or promotion of any cigarettes the packages of
which are labeled in conformity with the provisions of this
Act.18
The Cipollone Court held that, although the presumption against preemption necessitated
a narrow reading and the entire field of cigarette labeling was not preempted by the
clause, state claims based on failure to warn were preempted because the state law relied
upon by plaintiff imposed a requirement or prohibition in violation of section 5. 19
Potential applications of Cipollone were limited by the Supreme Court’s
subsequent decision in Medtronic, Inc. v. Lohr.20 The plaintiff in Medtronic sued under
state law for negligence and strict liability relating to a failed pacemaker. The defendant,
Medtronic, argued that the Medical Device Amendments ("MDA") to the Food, Drug and
Cosmetic Act ("FDCA") preempted state claims based on the following language:
Except as provided in subsection (b) of this section, no
State or political subdivision of a State may establish or
continue in effect with respect to a device intended for
human use any requirement-(1) which is different from, or in addition to, any
requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device
or to any other matter included in a requirement applicable
to the device under this chapter.21
Medtronic argued that plaintiff's claims constituted state laws that were "different
from, or in addition to" requirements established under the MDA, and therefore
preempted. The Court rejected this argument for several reasons.
First, because the MDA created no private right of action, without state common
law claims potential plaintiffs would be without a remedy for injuries resulting from
defective medical devices.22 Second, the preemption language referred to "any
requirement" applicable under federal law. The Court characterized the state law as a
remedy and refused to equate "remedy" with "requirement."23
Id. § 1334.
v. Liggett, 505 U.S. 504.
20 Medtronic, Inc. v. Lohr, 518 U.S. 470.
21 21 U.S.C. 360k(a).
22 See Medtronic, Inc. v. Lohr, 518 U.S. at 487.
23 See id. at 487-488.
18
19Cipollone
4
Finally, the Court agreed with plaintiff that in order for preemption to occur, the
federal requirement preempting the state law must be "applicable to the device" in
question.24 While not ruling out the possibility that general state requirements could be
preempted, the Court held that a state requirement must threaten a specific federal interest
in order for the state law to be preempted. Because the state common law at issue was
not developed "with respect to" medical devices, and because the state law constituted
only general obligations, the Court concluded that plaintiffs claims were not preempted
by the MDA. 25
2.
Proposition 65 Caselaw
As noted above, preemption can be invoked in three settings: (1) where a federal
statute includes an express preemption clause, (2) where congress has made clear that
federal statute is meant to occupy entire regulatory scheme, and (3) where state and
federal law conflict. Each of these has been used to challenge enforcement of
Proposition 65.
In addition to the occupational exposure cases discussed above, Proposition 65
has been challenged as preempted by five product safety-related federal statutes:
•
•
•
•
•
the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA");
the Federal Hazardous Substances Act ("FHSA");
the Medical Device Amendments to the FDCA ("MDA");
the Hazardous Materials Transportation Act ("HMTA"); and
the Food, Drug, and Cosmetic Act ("FDCA").
Only one such preemption challenge has been successful. That litigation, as well as the
challenges that have been unsuccessful to date, are discussed below.
(a)
FIFRA Challenge
The first significant federal preemption challenge to Proposition 65 was Chemical
Specialties Mfrs. Ass'n, Inc. v. Clifford Allenby (“Chemical Specialties”).26 There,
manufacturers of insecticide, disinfectant, and antimicrobial products sought a
declaratory judgment that Proposition 65 warnings relating to such products were
preempted by the labeling requirements of both FIFRA and the FHSA.27
The Court examined the express preemption clauses of both statutes and
determined that in neither case did the point of sale warnings authorized under
Proposition 65 constitute "labeling" preempted by either FIFRA or FHSA.28 Further, the
Court found that warnings required under Proposition 65 were not necessarily duplicative
Id. at 498.
Id. at 500.
26 Chemical Specialties Mfrs. Ass'n, Inc. v. Clifford Allenby, 958 F.2d 941 (9th Cir. 1992).
27 Id.
28 Id.
24
25
5
of those required under FHSA, since FHSA does not require specific language in its
warnings.29 The Court also dismissed the manufacturers’ argument that FHSA's
preemption clause included not only "labeling" but also "all accompanying literature
where there are directions for use," rejecting the contention that Proposition 65's point of
sale signs constituted "directions for use."30
The manufacturers also argued that Proposition 65 was impliedly preempted
because the additional warnings required by Proposition 65 would constitute misbranding
under FIFRA. The Court rejected this argument, observing that "[i]t seems implausible
that the EPA would prosecute a company for, in essence, complying with Proposition
65."31 The Court also concluded that there was no conflict preemption because point of
sale warnings made it possible to simultaneously comply with both Proposition 65 and
FIFRA.32 The availability of point of sale warnings as a method of complying with
Proposition 65 was a major factor in the Court's rejection of the manufacturers’
preemption challenge.
(b)
MDA Challenge
The Ninth Circuit next considered a Proposition 65 preemption challenge in
Committee of Manufacturers and Distributors v. Stratton ("Dental Amalgam"). There,
manufacturers of dental amalgam containing mercury argued that the Medical Device
Amendments ("MDA") to the FDCA preempted Proposition 65 because the federal law
explicitly prohibited state laws that were "different from or in addition to" federal
labeling requirements.33 The manufacturers argued that the FDA had expressly found
that no reproductive harm warning was required for dental amalgam, and that this was a
federal "requirement." Therefore, they contended, any Proposition 65 warning regarding
reproductive harm would be "different than or in addition to" the federal requirement and,
therefore, preempted.34
Although the lower court ruled in defendants' favor, the Ninth Circuit reversed,
citing FDA regulations that provided that a state requirement would be preempted only if
specific federal counterpart requirements existed that were applicable to a particular
device.35 The Court held that the lack of a labeling requirement was not a "requirement"
that would trigger preemption.36 Relying on Medtronic, the Court also adopted a narrow
reading of the MDA, noting that under a broad reading, any state law could be construed
as "in addition to" federal law, thereby rendering the "different from" language
meaningless.37 The Court noted that Proposition 65 is a state law of general applicability
Id.
Id.
31 Id. at 947.
32 Id.
33 Committee of Manufacturers and Distributors v. Stratton, 92 F.3d 807 (9th Cir. 1996).
34 Id. at 812.
35 Id.
36 Id.
37 Id.
29
30
6
that was not aimed specifically at regulating medical devices.38 Because it imposes only
general obligations, the Court concluded that Proposition 65 was unlikely to impede
federal regulators' ability to implement and enforce specific federal regulations.39
One problem with the Dental Amalgam Court's reliance on Medtronic is that it
focused on the Medtronic Court's language regarding the MDA's absence of a private
right of action. In Medtronic, the Court was asked to determine whether the common law
remedy being sought by plaintiff was preempted by the federal statute relating to state
"requirements."40 The Medtronic Court noted that the MDA did not provide a private
right of action and held that the term "requirement" in the MDA did not include
"remedy."41 Therefore, the MDA did not preclude all state remedies for violation of the
federal statute.42
However, that was not the question before the Ninth Circuit. Rather, the question
in Dental Amalgam was whether an explicit finding of no warning requirement should
preempt a contrary state law requiring a warning. The basis for conflict preemption in
Dental Amalgam was simply not analogous to the facts in Medtronic, in which no
conflict was found. Additionally, based on the logic of the Court in Dental Amalgam,
Proposition 65 would never be preempted by federal law because there is no specific
product category to which it applies.
(c)
FHSA Challenge
Shortly after the Dental Amalgam case, another challenge based on the FHSA was
brought by a hardware store cooperative that had been sued by the State of California for
failing to provide Proposition 65 warnings on products containing toluene.43 The
defendants in People ex rel. Lungren v. Cotter & Co. argued that the Chemical
Specialties Court had misapplied and misinterpreted state and federal law in holding that
point of sale signs are not "cautionary labels" under the FHSA.44 The Cotter defendants
relied on language in Cipollone, which was decided after Chemical Specialties, to
contend that because Proposition 65 and the FHSA have the same "predicate duty," i.e.,
the legal duty to warn of toxic dangers, warnings under Proposition 65 must be
preempted.45
The Cotter Court countered that Medtronic refined the Cipollone analysis to
conclude that the predicate duty analysis does not apply when the federal statute merely
requires a general duty rather than a specific duty regarding particular products.46 The
Court in Cotter rejected defendants’ argument, finding that "[w]hen the predicate for the
Id.
Id.
40 See Medtronic, Inc. v. Lohr, 518 U.S. 470.
41 See id. at 495.
42 See id.
43 See People ex rel. Lungren v. Cotter & Co., 53 Cal.App.4th 1373 (1997).
44 Id. at 1379.
45 Id.
46 Id. at 1385-1386 (citing Medtronic).
38
39
7
plaintiff's claims is the general duty to inform users and purchasers of potentially
dangerous items and the federal government has not implemented or enforced specific
federal requirements, general obligations imposed by the state do not threaten the federal
requirements."47 The Court also noted that this interpretation of Medtronic was one basis
for the decision in the Dental Amalgam case.48 Accordingly, the Court followed the
holding in Chemical Specialties, finding that point of sale signs are not "labels" that
would be preempted under FHSA.49
(d)
HMTA Challenge
Preemption of Proposition 65 was successfully challenged in the recent Los
Angeles Superior Court ruling in Nilsen v. City of Long Beach. There, the defendant
railroads were among a number of parties alleged to have violated Proposition 65 for
failure to warn of exposure to petroleum coke dust at the Port of Long Beach. The coke
dust allegedly contained a number of listed chemicals, including benzo(a)pyrene,
benzo(b)flouranthene and chrysene.
Although petroleum coke is not listed as hazardous in federal regulations, the
railroad defendants argued that the HMTA preempts state laws that are "not substantively
the same as" the federal statute in such areas as the designation and classification of
hazardous material, as well as its handling, labeling and marking.50 The Superior Court
granted summary judgment in favor of the railroad defendants, apparently agreeing that
federal regulations "cover and subsume the entire subject matter of rail transportation of
hazardous and non-hazardous goods," as the railroad had argued in its brief.51
It is significant that in the case of the HMTA, unlike FIFRA and FHSA, the
preemption provision is unusually broad. It encompasses:
(A) the designation, description, and classification of
hazardous material.
(B) the packing, repacking, handling, labeling, marking,
and placarding of hazardous material.
(C) the preparation, execution, and use of shipping
documents related to hazardous material and requirements
related to the number, contents, and placement of those
documents.
(D) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous
material.
Id.
Id.
49 Id.
50 See PROPOSITION 65 NEWS, Vol. 16, No. 1 & 2, *1 (Jan. 1 & 15, 2002).
51 See id.
47
48
8
(E) the design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a
packaging or a container represented, marked, certified, or
sold as qualified for use in transporting hazardous
material.52
Thus, environmental exposures to dust could be governed by the terms "designation,"
"classification" and "handling." In addition, the railroad defendants in Nilsen would not
have had to argue that point of sale signs constitute "labeling," since the terms "marking"
and "placarding" arguably include point of sale signs.
(e)
FDCA Challenge
Dowhal v. SmithKline Beecham Consumer Healthcare is the most recent case to
present a preemption argument, raising the issue under the FDCA.53 The Dowhal case
involves a Proposition 65 suit against manufacturers of nicotine patches and similar
nicotine products designed to help people stop smoking. These products are regulated by
the FDA under the FDCA, which contains stringent labeling requirements. Significantly,
one of the defendants, McNeil Consumer Products Company, asked the FDA in 1997 for
permission to change its label for the product Nicotrol to include Proposition 65 safe
harbor language. The FDA denied that request, stating that McNeil must continue to use
the labeling approved at the time of product approval.
McNeil and another defendant, SmithKline, made repeated requests to change
their labels after learning that another company's labels included language that would
satisfy the requirements of Proposition 65. As the San Francisco Superior Court noted in
Dowhal, the FDA repeatedly and expressly prohibited McNeil and SmithKline from
modifying their labels to comply with Proposition 65.54 On this basis, the Superior Court
found conflict preemption between Proposition 65 and the FDCA.
However, during the manufacturers’ exchange with FDA, the FDCA was
amended to include the following exemption to the preemption clause:
This section shall not apply to a State requirement adopted
by a State public initiative or referendum enacted prior to
September 1, 1987.
This "savings clause," coupled with an accompanying expression of Congressional intent
to exempt Proposition 65 from FDCA's preemption clause, were key in the First
Appellate District’s reversal of the Superior Court's decision.
52
49 U.S.C.A. § 5125.
Dowhal v. SmithKline Beecham Consumer Healthcare, 100 Cal.App.4th 8 (2002); Review Granted (Oct. 23, 2002).
54 It was not until four years later, during the lower court proceedings in 2001, that FDA finally issued a letter
granting plaintiff's request for consistent pregnancy warnings on such products. Although plaintiff's request to
include that the language "harm your baby" was rejected, the appellate court assumed that the modification
approved by the 2001 letter would still meet the requirements of Proposition 65.
53
9
Several other courts have determined that despite the existence of a savings
clause, conflict preemption could still be found.55 In Geier v. American Honda Motor
Co., Inc., for example, the Court concluded that a lawsuit that required manufacturers to
install airbags even when the federal safety standard did not impose such a requirement
would frustrate the objective of the federal regulation to encourage manufacturers to
employ a variety of passive restraint devices.56 The Geier Court made clear that a
savings clause was not meant to "bar the ordinary working of conflict preemption
principles."57 Yet the Dowhal Court rejected precisely that argument by defendants: that
the FDCA amendment only applied to express preemption and that implied preemption
(including conflict preemption) still existed in that case.58
The Dowhal Court’s conclusion appeared to leave defendants in the position of
violating either state or federal law. The Court's response to this dilemma was to observe
that, although a violation of Proposition 65 might result from compliance with federal
law, any penalties assessed against defendants would be mitigated by such factors as the
nature and extent of the violation, the defendants' good faith measures to comply, and the
willfulness of the defendants' misconduct.
The First Appellate District Court’s opinion in Dowhal is pending review by the
California Supreme Court, the manufacturers’ petition having been granted review on
October 23, 2002.59
C.
Other potential Bases for Federal Preemption
Proposition 65 plaintiffs have targeted a wide array of products in alleging failure
to warn of exposure to listed chemicals, including such diverse items as calcium
supplements, brass faucets, dinnerware, dandruff shampoo, bottled water and keys. They
have also alleged violations for failure to warn of exposure in environmental settings,
55 See, e.g., Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000); Nat'l Audubon Society, Inc. v. Davis, 307
F.3d 835 (9th Cir. 2002) (National Wildlife Refuge System Improvement Act preempted state law banning leg
traps because of conflict preemption, despite savings clause in NWRSIA); Fireman's Fund Ins. Co. v. City of Lodi,
California, 302 F.3d 928, 952 (9th Cir. 2002) (CERCLA savings clauses apply to field preemption, not conflict
preemption).
56 See Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000).
57 Id. at 869.
58 The concurrence disagreed that the savings clause applied to implied preemption or conflict preemption, but
found that no conflict existed in this case because the FDCA pertained only to product labels, while the
requirements of Proposition 65 could be met through methods other than product labeling. See id. at 262.
Once again, Proposition 65's point of sale signs thwarted the defendants' preemption arguments.
59 At about the same time as Dowhal, a similar case involving coal tar in dandruff shampoo was proceeding.
Gottesfeld v. Alva-Amco (consolidated with People v. Alva-Amco), was a San Francisco Superior Court case
overseen first by Judge David Garcia and ultimately by Judge Carlos Bea. See Gottesfeld v. Alva-Amco Pharmacal
Cos., Inc., et al., Case No. 300643 consolidated with Case No. 300827 (S.F. Sup. Ct. 2001). The case was initially
stayed by Judge Garcia pending FDA's review of the issue. Defendants later filed a motion for summary
judgment on the issue of preemption, specifically arguing that the savings clause (the same one cited in Dowhal)
did not apply to conflict preemption and that Geier supported preemption. Despite these arguments and the
fact that the FDA had issued a letter indicating that the addition of Proposition 65 warnings to dandruff
shampoo could constitute mislabeling under the FDCA (see letter from Dept. of Health & Human Services
dated Sept. 10, 2001), no preemption was found, and the parties settled the case rather than appealing.
10
including parking garages, hotel rooms, modular buildings and newly-constructed homes.
The success of preemption challenges in this panoply of settings depends on the
federal statute at issue, Congress' intent in regulating a particular field, whether the
statute has a preemption clause, and the preemption language itself. For example, even
though many facilities' air emissions are regulated under the Clean Air Act, that Act has
no preemption provision that would apply to warnings related to such emissions. Rather,
preemption of state law would be found only if the emission standards themselves were
in conflict.60 In addition, the Clean Air Act expressly allows more stringent state laws.61
Depending on the context of the alleged Proposition 65 violation, however, other
statutes provide a stronger basis for federal preemption. For example, what if a plaintiff
were to allege environmental exposures from jet fumes at airports? A defendant might
look to the Federal Aviation Act ("FAA"), a federal statute that regulates airport-related
noise and air pollution.62 The purpose of that statute is to "establish a new Federal
agency with powers adequate to enable it to provide for the safe and efficient use of the
navigable airspace by both civil and military operations."63 Although the FAA does not
have an express preemption clause, it has been interpreted as so occupying the regulation
of aircraft noise and pollution as to preempt any state or local action in that field.64
In Village of Bensenville v. City of Chicago, for example, the Court held that the
FAA regulated the field of aircraft noise and pollution such that a municipality's attempt
to enjoin the expansion of an airport on that ground was preempted.65 The Court relied
on the need for uniformity in the area and noted that similar regulation by numerous local
municipalities would seriously interfere with the ability of the administrator of the FAA
to control air traffic flow.66 The statute's broad reach makes it possible that alleged
environmental exposures associated with airports or aircraft could be preempted by the
FAA. However, because the bulk of preemption challenges to date have dealt with noise
pollution rather than air pollution, the viability of such a challenge is uncertain.
Another aircraft-related statute is the Airline Deregulation Act ("ADA"). That
statute has a preemption clause that reads as follows:
Preemption of authority over prices, routes, and service
(b) Preemption.--(1) Except as provided in this subsection,
a State, political subdivision of a State, or political
authority of at least 2 States may not enact or enforce a law,
regulation, or other provision having the force and effect of
42 U.S.C. § 7401 et seq.
See id.
62 49 U.S.C. § 40101 et seq.
63 House Report 2360, 85th Congress, 2nd Session, pg. 3741.
64 See Village of Bensenville v. City of Chicago, 16 Ill.App.3d 733 (1973).
65 See id.
66 See id.
60
61
11
law related to a price, route, or service of an air carrier that
may provide air transportation under this subpart.67
Could a private plaintiff bring a suit under Proposition 65 if it discovered that airline
food, seat cushions or those expensive in-flight phones contain a listed chemical? A
1997 case, Gee v. Southwest Airlines, focused on the type of "services" preempted by the
ADA, and held that certain types of state tort claims relating to service provided by flight
attendants were preempted.68 To the extent that food or other amenities were targeted by
plaintiffs under Proposition 65, this could have been a promising basis for a preemption
challenge. However, Gee was overruled in 1998 by Charas v. Trans World Airlines, Inc.,
when the Ninth Circuit held that "service," for purposes of the ADA, meant "prices,
schedules, origins and destinations of the point-to-point transportation of passengers,
cargo, or mail" but "was not intended to include an airline's provision of in-flight
beverages, personal assistance to passengers, the handling of luggage, and similar
amenities."69
Courts have found other state laws relating to aviation safety to be preempted,
however.70 The Court in Abdullah v. American Airlines, Inc., which involved personal
injury tort claims, found implied federal preemption of the entire field of aviation safety
with respect to air safety standards.71 Depending on how such air safety standards are
articulated in federal regulations and what violations are alleged under Proposition 65,
certain Proposition 65 claims may be preempted.72
Another federal statute with a potentially applicable preemption clause is the
Federal Boat Safety Act ("FBSA"). Section 4306 of that statute establishes the federal
preemption of recreational boating standards and requirements.73 A number of cases
have held that state attempts to regulate safety devices are preempted by the FBSA,
which grants exclusive regulatory authority to the Coast Guard. Interestingly, in light of
the facts in Dowhal and the Dental Amalgam case, many FBSA cases involved claims
based on the failure to install a product (propeller guards) that the Coast Guard had
decided should not be required.74 A state requirement for such devices was held to
conflict with the regulatory uniformity purpose of the FBSA and was therefore preempted
by the FBSA.75 The reasoning of these cases appears to be in direct conflict with the
reasoning of some Proposition 65 cases where preemption was rejected. Although
49 USC 41713.
Gee v. Southwest Airlines, 110 F.3d 1400 (9th Cir. 1997).
69 See Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998).
70 Abdullah v. American Airlines, Inc., 181 F.3d 363, 365 (3rd Cir. 1999). See also Bethman v. City of Ukiah, 216
Cal.App.3d 1395, 1407 (1989) (FAA primarily concerned with safety in flight).
71 See id.
72 Nevertheless, as in Medtronic, remedies under state law for tort actions are not preempted in California despite
pervasive federal regulation of the field. See Elsworth v. Beech Aircraft Corp., 37 Cal.3d 540 (1985).
73 See 46 U.S.C. 4306 ("A State or a political subdivision may not establish, continue, or enforce a law or
regulation establishing a performance or other safety standard that is not identical to a Federal standard.").
74 See, e.g., Lewis v. Brunswick Corp., 107 F.3d 1494 (11th Cir. 1997); Carstensen, 49 F.3d at 432.
75 Lewis v. Brunswick Corp., 107 F.3d 1494.
67
68
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common law tort claims are not preempted by the FBSA,76 Proposition 65 claims may be
preempted, depending on whether the Coast Guard has issued regulations relating to the
alleged violation at issue.
Finally, the National Manufactured Housing Construction and Safety Standards
Act of 1974 ("NMHCSSA") contains a preemption clause that prohibits state
establishment of any standard regarding construction or safety of a manufactured home
that is not identical to the Federal manufactured home construction and safety standard.77
The clause goes on to state:
Federal preemption under this subsection shall be broadly
and liberally construed to ensure that disparate State or
local requirements or standards do not affect the uniformity
and comprehensiveness of the standards promulgated under
this section nor the Federal superintendence of the
manufactured housing industry as established by this
chapter.
The Building Industry Association has counseled its members to post Proposition 65
warnings regarding the presence of formaldehyde at newly constructed homes. Yet
section 5403, above, suggests that at least some new homes in California – those that are
"manufactured" as defined in the federal statute – may not be required to post Proposition
65 warnings because such a duty is preempted by federal law.
These Proposition 65 preemption arguments are consistent with case law in other
jurisdictions concluding that a state may not promulgate its own safety standards where
federal safety regulations have been promulgated on the same subject.78 For example, in
Scurlock v. City of Lynn Haven, Florida, plaintiffs' manufactured home met HUD
specifications but not certain aspects of the city's municipal code, which included safety
standards.79 The Eleventh Circuit found the municipal code safety standards were
preempted by HUD specifications.80 Similarly, federal courts have found that federal
regulations governing formaldehyde in building materials may provide a basis for
preemption of inconsistent state or local requirements: 24 C.F.R. § 3280.308 establishes
maximum formaldehyde emission levels for plywood and particleboard materials in
manufactured homes, and 24 C.F.R. § 3280.309 requires manufacturers to place a health
notice about formaldehyde in every manufactured home's kitchen.81
76
Sprietsma v. Mercury Marine, a Div. of Brunswick Corp., 123 S.Ct. 518 (2002) (FBSA preemption clause applied
only to "a law or regulation").
77 42 U.S.C. 5403 et seq.
78 See, e.g., Scurlock v. City of Lynn Haven, Fla., 858 F.2d 1521 (11th Cir.1988); Liberty Homes, Inc. v. Department of
Indus., Labor & Human Relations, 125 Wis.2d 492 (App.1985), aff'd., 136 Wis.2d 368 (1987); Shorter v. Champion
Home Builders Co., 776 F.Supp. 333 (N.D. Ohio 1991).
79 Scurlock v. City of Lynn Haven, Florida, 858 F.2d 1521 (11th Cir.1988).
80 Id.
81 See Shorter v. Champion Home Builders Co., 776 F.Supp. 333 (N.D. Ohio 1991); Mizner v. North River Homes, Inc.,
913 S.W.2d 23 (Mo.App. E.D. 1995). Both of these cases involved tort actions that the courts found were not
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IV.
CONCLUSION
Although challenges to Proposition 65 have met with limited success to date,
federal statutes and regulations provide important opportunities for defense of
Proposition 65 claims based on preemption. The California Supreme Court’s decision in
Dowhal should provide the guidance needed to resolve the mixed results achieved to date
in the lower courts. Until the issue is resolved, Proposition 65 will remain a significant
burden on distribution of products in interstate commerce and on other businesses subject
to conflicting federal requirements.
Copyright 2003
Farella Braun + Martel LLP
This law update is published as a service to our clients and friends. It should be viewed
only as an overview of the law, and not as a substitute for legal consultation.
07227\632429.1
preempted. However, as the Shorter court explained: "[W]hile the state of Ohio may not institute its own safety
standards, state law claims may still be brought." Shorter v. Champion Home Builders Co., 776 F.Supp. at 338
(emphasis added).
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