Review Question 4 - Sample Answer and Grading Sheet

Below are both a sample answer to Review Question 4 and a grading sheet for the question. If you have written out an answer, you might want to grade your own answer using the grading sheet. In evaluating your own work, remember that even students who receive an “A” for their answer to a particular question do not get all of the points allocated to a question. For information on the range of points awarded on a typical exam, see the description of Grading Sheets and Grading.

Review Question 4 - Sample Answer
    
Children’s Toys, Inc. (CTI) will first argue that the Small Parts Labeling Law is preempted by the provisions of the Federal Toy Safety Act.  The federal law is a valid exercise of the Commerce Clause because it is a prohibition on shipping toys in interstate commerce unless they comply with the labeling requirements of the Toy Safety Act (TSA).  The power to regulate interstate commerce itself falls within category one of the three Lopez categories and is plenary.  As a valid federal law, the TSA can preempt state laws.  The Toy Safety Act does not contain any express preemptive language so it is necessary to argue that the state law is impliedly preempted by the TSA.  CTI will first argue that there is a conflict between the state and federal law because the state law undermines the purpose of the federal law.  The federal law is intended to balance safety against the economic interests of toy manufacturers.  In the case of toys intended for children between 3 and 7, federal law specifically decided to identify a limited category of risks and those risks did not include the risks of choking on small parts by children under 3.  An amendment to expand the scope of the federal law to require a warning label for just such a risk was defeated.  Therefore, the operation of the state law would undermine the delicate balance between safety and economics that the TSA strikes.  In addition, CTI will argue that there is preemption by occupation of the field.  The field of product labeling of consumer products, including toys, that are shipped in interstate commerce is chiefly governed by federal law.  The federal law contains detailed provisions on labels to assure toy safety and Congress specifically rejected any expansion of those labeling provisions.  Therefore, a court should conclude that the federal government intended to fully occupy the field of toy safety labeling for toys made for children through the age of 7 and intended to preclude even state laws that furthered the same safety purpose as the federal law.

The State of Connecticut will argue that the state law is not preempted by the TSA.  First, it is possible to comply with both the state and the federal law at the same time since the federally mandated labels do not preclude a toy from including the additional warning required by state law.  Second, the operation of the state law does not undermine the federal purpose.  The federal purpose is child safety and the state purpose is also child safety.  The state law just adds an additional layer of safety protection and does not undermine the federal purpose. In addition, there is nothing to indicate that the federal government intended to fully occupy the field of toy safety.  The area of child safety is of mutual concern to both the states and the federal government.  A reasonable presumption is that the federal labeling law establishes a minimum level of protection and not a maximum level (a floor and not a ceiling) and that the states are free to impose stricter labeling requirements for toy safety than the federal government does in the absence of a clear statement in the federal statute that the federal standards are intended to be both a floor and a ceiling.  Finally, the fact that Congress did not adopt an amendment that would have expanded the mandatory labels to include a warning against choking of exactly the kind the state has adopted does not suggest a different outcome.  It is impossible to know why the federal amendment was defeated and the fact that the bill was considered indicates that Congress was aware that the federal law did not regulate every aspect of toy safety, leaving room for additional regulations by the state.   

As an alternative to the preemption argument, CTI will argue that the state law violates the dormant Commerce Clause.  First, CTI will argue that the stricter test (state must prove it has a legitimate state purpose and no nondiscriminatory means - means that don't discriminate against interest commerce - are available to accomplish that purpose) should apply because the state law discriminates against out-of-state commerce in its practical effect.  The law, like the North Carolina apple labeling law, has no adverse impact on Connecticut toy manufacturers, but will adversely effect out-of-state companies by requiring they add an additional warning label to some toys.  As a law that discriminates, even if it promotes the legitimate purpose of child safety, the state will still need to show that the state has no nondiscriminatory alternative means available to protect child safety.  Other means that do not require a change in labeling exist to protect children such as a campaign by the state to inform parents about the hazards of choking on small parts.

CTI will also argue that the state law is an example of economic protectionism because it was designed to protect Safe Toys, Inc. from out-of-state competition.  Safe Toys, Inc. was a strong supporter of the state law and the only manufacturer of toys for children between the ages of three and seven located in Connecticut. Most importantly, Safe Toys already labels its toys as required under state law so the new law will not have any adverse impact on Safe Toys but will adversely effect its out-of-state competitors. Means that are designed to protect the state's economic interests are illegitimate under the strict test and therefore the state would fail to satisfy the requirement of having a legitimate local purpose.

CTI will also argue that even if the balancing test applies, the burdens of the law on interstate commerce outweigh the safety benefits.  The law imposes additional costs on CTI and other toy companies that sell their products in Connecticut.  That economic burden is not offset by any safety benefit.  The state has not demonstrated that the warning label requirement it has adopted will alter the behavior of parents and save the lives of children. While the state heard testimony that choking on small parts is one of the leading causes of toy-related deaths in children under age three, it did not hear any testimony that warning labels reduce the number of such deaths.  Moreover, the state did not learn whether the cause of the choking deaths was the result of unlabeled toys intended for older children or toys with a warning label intended for children under 3.  It is not sufficient to assert such a safety benefit, the state must prove that parents pay attention to such labels when buying toys and it failed to do so.

The state will respond to the dormant Commerce Clause argument by asserting that the purpose of the law was child safety and not economic protectionism.  Before passing the law the state heard from medical experts that choking on small parts is one of the leading causes of toy-related deaths for children under 3.  This evidence makes clear that there is a genuine threat to child safety that the state responded to by enacting the law.  Moreover, the law does not discriminate against out-of-state commerce.  All toy manufacturers must comply with the law.  There is no exemption for Connecticut companies.  Even if the court finds that the law discriminates in its effect, there is no alternative means available that would be equally effective.  Warning labels are a standard means to warn consumers of the hazards of a consumer product.  Unlike the North Carolina labeling case, the state law does not require that a toy company remove any of its current labels, it only requires that it add one additional label.  This is not very burdensome.

Finally, if the court concludes the law does not discriminate against out-of-state commerce, it should also find that the benefits of the law outweigh the burdens on interstate commerce.  The economic burdens of an additional label are quite modest as compared to the likelihood that the additional label will save the lives of some children.

Question Four Grading Sheet

Small Parts Labeling Law (40 points)
preemption-identify issue(1 pt)____
valid fed'l law?-is law valid under power to regulate interstate commerce(4)____
express preemption by Fed Toy Safety Act?-does fed’l law expressly preempt state law?(2)____
conflict-is it impossible to comply with both fed and state law at the same time?(4)____
conflict in purpose-does the operation of the state law undermine the federal purpose?(4)____
occupation of the field-did Congress intend to fully occupy the field and which field?(4)____
dormant commerce clause–identify issue(1)____
strict test-discrim ag interstate commerce-no discrim on face of law, but is there discrim in effect?(4)____
legit state purpose and no nondiscriminatory means are available(4)
strict test-eco protectionism - was law designed to benefit a local toy company?(4)____
balancing test - burdens on interstate commerce vs. local benefits (more than slight?)(5)____
miscellaneous/special level of understanding___________________________________(3)____