ELR Citation: ELR 20822
No(s). 90-16485 (9th Cir. Mar 11, 1992)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Hazardous Substances Act (FHSA) do not preempt a California law that requires manufacturers of products listed by the state as carcinogenic or reproductively toxic to provide adequate warnings to the consuming public that the products pose a health risk. The court first notes that a retail outlet can comply with the California law by posting a sign in a visible place specifying the products that are known to the state to cause cancer or that are reproductively toxic. The court holds that FIFRA does not expressly preempt the California law. Although additional labeling requirements would be unconstitutional under FIFRA, the warning requirements of the California law do not constitute additional labeling. The warnings required by the California law are not "labels" within the meaning of FIFRA §2(p)(1), since point-of-sale warnings are neither written on the pesticide nor attached to it. They do not constitute "labeling" within the meaning of §2(p)(2), since point-of-sale signs are not attached to the product's immediate container and will not accompany the product during the period of use. The court holds that FIFRA does not impliedly preempt the California law. Although FIFRA provides that a pesticide is misbranded if the warning on the label is insufficient to protect the public health, it is implausible that the U.S. Environmental Protection Agency would prosecute a company for misbranding a product because its label did not include a warning from the point-of-sale notices required by the California law. Further, the California law does not pressure manufacturers to affix additional labels to their product containers out of fear that product liability suits will result in other states from failure to warn of the dangers listed in the California point-of-sale notices. The court notes that since the plaintiff trade association has acknowledged the possibility of complying with both the California law and FIFRA, the court need not consider whether the California law frustrates congressional purpose.

Finally, the court holds that the point-of-sale notices required by the California law do not constitute cautionary labeling preempted by the FHSA. The notices are not "directions for use," and the warnings required by the two laws are not necessarily nonidentical. The court holds that the California law would not frustrate any congressional purpose underlying the FHSA.

[The district court's opinion is published at 21 ELR 20488.]

Counsel for Plaintiff-Appellant
Charles A. O'Connor III
McKenna & Cuneo
1575 I St. NW, Washington DC 20005
(202) 789-7500

Counsel for Defendants-Appellees
Edward G. Weil, Clifford Rechtschaffen, Deputy Attorneys General
2101 Webster St., 12th Fl., Oakland CA 94612
(510) 464-4200

Hug, J. (before Hall and O'Scannlain, JJ.):