Federal Preemption and
Prop. 65:
A “Chicken and
Egg” Problem?
RWG 2010
Introduction
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Initially, the “new wave” of
Proposition 65 cases focused on
carcinogens in food:
But, defendants raised a new
defense to combat the new wave
of plaintiffs’ cases—federal
preemption.
How has the new defense, federal
preemption, faired in the Courts?
RWG 2010
Topics of Discussion
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The federal preemption
defense in Proposition 65
cases involving food:
(1) Fed. Preemption in general
(2) Fed. Preemption in 3 Prop.
65 food cases
(3) Practice pointers for the
Prop. 65 lawyer.
RWG 2010
Federal Preemption—
General Concepts
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Basic Rules are Simple, but the Devil is
in the application
If Federal law “applies”, then it preempts
state/local law. U.S. Supremacy Clause
3 types of preemption: express, field,
and implied
Preemption should be rare in state
health & safety cases—the presumption
against preemption
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Preemption in Practice–
a Serbonian bog
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Does the federal law “apply” to the
particular subject? A hunt for the
“snipe”—Congressional intent that
rarely involves any look at
legislative history
The 3 categories of preemption are
“not rigidly distinct” analytical
standards. Gade v. National Solid Wates
Management Ass’n, 505 U.S. 88, 104, n.2
(1992).
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The Preemption Bog (2)
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Courts sometimes consider
“congressional intent” based upon
another statute. Metropolitan
Taxicab Bd. V. City of New York,
2010 WL 2902501 (2d Cir. 2010).
Courts sometimes consider
“congressional intent” based upon
the statements of a federal agency
made years after the statute. Dowhal
v. SmithKline Beecham Consumer Healthcare,
32 Ca. 4th 910 (2004).
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Preemption in Prop. 65
Food Cases
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Tuna Canners Case: Canned tuna,
mercury, and preemption claims. People
v. Tri-Union Seafoods, LLC, 171 Cal.
App. 4th 1549 (2009).
Tuna canners defense was (in part) that
the State’s requirement of a label was
preempted by virtue of the Federal Food
& Drug Act.
Tuna Canners got a letter from the then
FDA Commission, Lester Crawford,
supporting preemption.
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Preemption: 3 cases
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Tuna Canners won before trial
court on various grounds, including
federal preemption.
Defendants won before Court of
Appeal,but only on the grounds
that mercury in tuna occurred at
natural levels. Appellate court
carefully ducked making any
decision on federal preemption.
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Preemption: 3 cases
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Grilled Chicken and PhIP. Physicians
Committee for Responsible Medicine v.
McDonalds Corp., 187 Cal. App. 4th 554
(2010).
Basis of suit
Defendants’ preemption argument was
founded upon the federal Poultry
Products Inspection Act (“PPIA”). So
you had PhIP v. PPIA!
Defendants won before trial court on
summary judgment.
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Preemption: 3 cases
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Defendants lost in Court of Appeal, which
held that preemption did not apply, at
least as to the “safe harbor” warning
under Prop. 65 and one other warning
suggested by Pl.
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American Meat Institute v. Leeman, 180
Cal. App. 4th 728 (2009): Finding Prop.
65 case was expressly preempted based
upon similar statute, the Federal Meat
Inspection Act. Court approved
defendants’ declaratory judgment action
filed within the 60-day “waiting period”
after Pl. filed a notice of intent to sue.
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What’s a Practioner to
do?
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Read the federal statute—ALL the way
through. Are there exemptions or definitions
that might apply?
Look for “Congressional intent” in legislative
history: any indication Congress intended to
preempt this state activity?
Consider whether a “presumption” against
preemption applies in your case.
Read the key Supreme Court cases and the
Prop. 65 statute, which contains an express
affirmative defense for preemption.
RWG 2010