The opinion of the court was delivered by: SMITH
FERN M. SMITH, UNITED STATES DISTRICT JUDGE.
Plaintiff, Chemical Specialties Manufacturers Association (CSMA) is a trade association whose members manufacture a variety of chemical specialty products. Plaintiff filed an action for declaratory judgment in the Southern District, seeking a ruling that California's Proposition 65 (Prop 65) warning requirements are preempted by two federal statutes, the Federal Insecticide, 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. The action was transferred from the Southern to the Eastern District and eventually transferred here soon after this Court granted partial summary judgment for defendant in the related case, D-Con v. Allenby, C 89 0332.
Pending before the Court are cross-motions for summary judgment on both the FIFRA and FHSA preemption issues. Plaintiff fails to adequately address this Court's decision in D-Con v. Allenby, 728 F. Supp. 605 (N.D. Cal. 1989), wherein this Court found that, while FIFRA preempts state pesticide labeling requirements (which defendant conceded), it expressly permits state regulation of pesticide sale and use. Some of the Prop 65 warning methods deemed "safe harbor" methods by the California Health and Welfare Agency, see 22 CCR § 12601 et seq., do not constitute "labeling" under FIFRA. Accordingly, the Court held Prop 65 not preempted by FIFRA and granted partial summary judgment in favor of defendant.
Given the earlier ruling on an identical challenge, and the fact that this plaintiff fails to raise any facts or law not previously considered by the Court, defendant's cross-motion for summary judgment as to FIFRA preemption is GRANTED and plaintiff's motion DENIED. The Court incorporates by reference its ruling in D-Con v. Allenby, 728 F. Supp. 605 (N.D.Cal. 1989). The FHSA preemption issue is addressed below.
The Federal Hazardous Substances Act
The FHSA preempts state cautionary label requirements.
The statute defines labeling as follows:
The term "label" means a display of written, printed, or graphic matter upon the immediate container of any substance or . . . . upon a tag or other suitable material affixed thereto; and a requirement made by or under authority of this title that any . . . . information appear on the label shall not be considered to be complied with unless such . . . . information also appears (1) on the outside container or wrapper . . . . and (2) on all accompanying literature where there are directions for use, written or otherwise.
15 U.S.C. § 1261(n) (emphasis added).
Plaintiff argues that only direct package labeling will satisfy the Prop 65 "clear and reasonable" warning requirement. As previously stated by this Court, determinations as to what does and what does not meet the requirements of Prop 65 are best made by state courts. Plaintiff also contends that the alternative warning methods deemed "safe harbor" provisions by the California Health and Welfare Agency (e.g., point-of-sale signs and telephone information services) are all "labeling" within the meaning of the FHSA.
Defendants argue that the Court need only find that any form of warning authorized by the existing regulations falls outside the scope of preempted "labeling" in order to find Prop 65 not preempted. It is unclear whether plaintiff disagrees with that proposition. Case law squarely supports defendant's view, however. "Federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons -- either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakenly so ordained." Florida Avocado Growers v. Paul, 373 U.S. 132, 142, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1962).
See also Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1976) ("We start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress"). In this case, the nature of the regulated subject matter -- health and safety -- is an area traditionally left to the states.
There is little case law interpreting the term "labeling" within the meaning of the FHSA. The two cases relied upon by plaintiff were both decided prior to the Congressional amendment which narrowed the scope of the FHSA's preemption provision
and both dealt with state regulations requiring information to be printed on the product label itself. See CSMA v. Lowery, 452 F.2d 431 (2d Cir. 1971) (New York City regulation required that certain information appear on product container and on the "carton, case, or similar bulk package" housing the product); CSMA v. Clark, 482 F.2d 325 (5th Cir. 1973) (local ordinance required information to be printed on the product's "container, wrapping, or other packaging"). Cases dealing with preemption of state "labeling" requirements under other, analogous federal Acts were addressed in the related case of D-Con v. Allenby.
The only new case cited by plaintiff is Professional Lawn Care Association v. Village of Milford, 909 F.2d 929 (6th Cir. 1990). Lawn Care concerns a challenge to a local ordinance (not a state statute) regulating pesticide use. The Court held that § 24(a) of FIFRA, which expressly allows state regulation of pesticide sale and use, extended ...