ELR Citation: ELR 20488
No(s). s. C 90-0211 FMS, C 89-0332 FMS (N.D. Cal. Sep 13, 1990)

The court rules that California's Proposition 65 warning requirements are not preempted by the Federal Hazardous Substances Act (FHSA) and incorporates by reference an earlier ruling that Proposition 65 is not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). A chemical manufacturers' trade association sought a ruling that Proposition 65's warning requirements are preempted by the FHSA and FIFRA. Citing D-Con v. Allenby, 20 ELR 20629, the court first holds that the Proposition 65 safe harbor warning methods do not constitute "labeling" under FIFRA. The court notes that although FIFRA preempts state pesticide labeling requirements, it expressly permits state regulation of pesticide sale and use. The court next holds that Proposition 65's warning requirements are not preempted by the FHSA. The FHSA's preemption provision is limited to cautionary label requirements and does not prohibit states from requiring other forms of clear and reasonable warning. Furthermore, Congress did not intend to occupy this entire area of regulation, as evidenced by the fact that states are expressly allowed certain functions under both FIFRA and the FHSA.

Counsel for Plaintiff
Charles A. O'Connor, Anthony C. Ching, Donna G. Diamon
McKenna, Conner & Cuneo
444 S. Flower St., Los Angeles CA 90071
(213) 687-8000

Counsel for Defendant
John K. Van de Kamp, Attorney General; Clifford Rechtschaffen, Edward Weil, Craig Thompson
800 Tishman Bldg., 3580 Wilshire Blvd., Los Angeles CA 90010
(213) 736-2304