Review Question 6 - Outline of Answer
and Grading Sheet
Below is an outline of the answer to the question (something I prepare
before I prepare the grading sheet) as well as the grading sheet.
Outline of Question 6 Anwer
Preemption
1. Is the federal law valid? ShooBug argues Federal Insecticide,
Fungicide and Rodenticide Act
(FIFRA) is valid under the Commerce Clause and thus can preempt state
law. FIFRA regulates the manufacture and sale (labeling) of a product
sold in interstate commerce. In addition, the regulated products enter
the air when they are used and can travel in interstate commerce even
when they are applied locally. Colorado argues the law exceeds
Congress's power to regulate interstate commerce since it regulates the
composition of a manufactured product not just its sale. It also
interferes with the health of children, a traditional area of state
control. Colorado's argument is a weak argument.
2. Express preemption
Federal law doesn’t preempt stricter requirements of sale or use; the
state
only can’t allow what federal law prohibits, but can prohibit what
federal
law allows. Federal law is a floor not a ceiling. If this
provision governed then there would be express nonpreemption or
permission to do what state has done. But that is just a sale or use
provision, there is a separate preemption provision on the subject of
labeling. It says states can’t add any additional requirements
for
labels beyond the federal requirements. The state could argue this
means no
additional language can be added to that required under federal law. It
could
argue the state hasn’t added any additional requirements, they’ve just
subtracted something from the label and thus the preemption provision
doesn’t apply. But ShooBug could argue that in addition means any
additional labeling requirement and here there is an additional
labeling requirement - that the label can’t include a safety claim;
something that isn’t required under federal law. If this definition of
the "in addition" language is accepted, then the Colorado labeling
requirement would
be preempted under the labeling preemption provision.
2. Implied preemption
a) Conflict preemption-impossibility of compliance with both. This
doesn’t exist because ShooBug can sell one version w/o safety claim
nationwide and be in compliance with both state and federal law or two
versions, the one without the safety claim only in Colorado, and be in
compliance with both state and federal law.
b) Conflict preemption-obstacle to the achievement of the objectives of
the federal law. Colorado argues not an obstacle since goal of federal
law is just to market safe insect repellents with accurate labels and
that is also the goal of the state law so it reinforces and doesn’t
undermine federal law. ShooBug argues that the federal goal is to
balance safety with making available insect repellants and Colorado has
interfered with the way federal law has balanced those competing
interests and therefore is an obstacle to the achievement of the
federal purpose.
c) Occupation of the field. State argues no occupation of the field
because federal
law allows for additional safety requirements on sale and use and so
hasn’t fully occupied the safety field; ShooBug argues that the federal
government has fully occupied the field of labeling or safety in
labeling and therefore the state can’t regulate in this way.
Dormant Commerce Clause
1) Economic protectionism. The state argues not economic protectionism,
but
genuine safety concerns in light of the camp incident; ShooBug argues
economic protectionism in light of massive lobbying efforts by
BugBeGone who lobbied to rid itself of a possible competitor by
creating market obstacles for ShooBug. If ShooBug relabels that
will probably raise the price of the product and give BugBeGone a
market advantage since its costs won’t increase and it won’t have to
raise the price of its product. In the alternative, ShooBug may
decide to not sell its product in Colorado which will keep out a major
competitor of BugBeGone. We don’t know whether there are other
Colorado based companies that produce insect repellants for kids that
will be adversely effected by the law even though BugBeGone won’t be.
2) Discrimination. The state law does not discriminate on the face of
the law since it
imposes the same requirement on instate and out-of-state sellers of
insect repellents for kids. However, ShooBug could argue discrimination
in effect because the major instate seller of insect repellents is not
subject to state law because it does not use chemical components and
therefore would not have to remove a safety claim from its label. If it
is discriminatory, then the state would have to show that its safety
purpose could not be achieved by any less discriminatory alternative
means and ShooBug could argue that alternatives exist - allow safety
claim, but also include some cautionary language or the state could pay
for
an advertising campaign urging parents to be careful in using insect
repellents on children.
3) Benefit vs. burden (for laws that don't discriminate against
interstate commerce and are not protectionist). The burden includes
extra expense of relabeling either
all product or only product bound for Colorado, extraterritorial effect
of relabeling entire product because Colorado is the only state with
this
requirement, interference with marketing campaign and possible loss of
nationwide distribution arrangements. The safety benefit: the law
doesn’t require any affirmative
warning, just the absence of a safety claim, and that may not change
the
behavior of any users of the product. While there was one
terrible incident with insect repellent in Colorado, that was some
other
product and not ShooBug and there is no evidence that the use of
ShooBug creates any safety risk and no evidence that even if there is a
risk that the removal of the safe for kids label will increase
safety. ShooBug could argue that any safety benefit is only de minimus
and doesn't outweigh the burden. Colorado would argue the burden of
relabeling doesn’t outweigh
the additional safety benefits of not claiming that an inherently
dangerous product is safe. Even if one parent is encouraged to be
more cautious by the absence of a label with a safety claim that is
enough of a benefit.
4) No market participant exception is available to the state since the
state is operating as a market
regulator and not a market participant.
Grading Sheet
(ShooBug for Kids insect repellant) (75 points)
Preemption (P)- is fed’l law valid under Commerce Clause? (ShooBug (S)
argues it is valid, Colorado (C) tries to argue it isn't valid(4)____
Express P- sale or use, floor not ceiling on safety & no P if that
is relevant provision(4)____
But labeling provision says no add’l reqs - does it mean no add’l lang
on label (C-no P-doesn’t add language); or no add’l reqs (S-adds add’l
req of no safety claim to label & there is P)(8)____
Implied P-Conflict-impossibility. Not impossible to comply
w/both-remove safety claim
or 2 versions(6)____
Conflict- does state law undermine purpose of fed law. C says it only
reinforces
fed safety purpose(4)____
S says it undermines-fed law balances safety & availability, by
req’g more
safety it interferes w/balance(4)____
Field P- C-hasn’t fully occupied safety field; S-has fully occupied
safety in labeling(8)____
Dormant Commerce Clause - economic protectionism (BugBeGone campaign vs
safety)(7)____
Discrimination ag interstate commerce (IC)-on face (no) vs. in effect
(BugBeGone)(6)____
Absence of alternatives that don’t discriminate ag IC(2)-S says
alts(4); C says no alts(2)(8)____
Undue burden on IC-balance burdens vs. benefits(2)-S-no safety
bens(4);C- + safety(4)(10)____
No market participant exception since acting as a market
regulator(3)____
Miscellaneous___________________________________________________________(3)____