Question Five 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 Five Answer 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)____