1. Federal Preemption and Prop. 65: A “Chicken and Egg” Problem? RWG 2010

2. Introduction 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

3. Topics of Discussion 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

4. Federal Preemption— General Concepts 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 RWG 2010

5. Preemption in Practice– a Serbonian bog 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). RWG 2010

6. The Preemption Bog (2) 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. 4 th 910 (2004). RWG 2010

7. Preemption in Prop. 65 Food Cases Tuna Canners Case: Canned tuna, mercury, and preemption claims. People v. Tri-Union Seafoods, LLC, 171 Cal. App. 4 th 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. RWG 2010

8. Preemption: 3 cases 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. RWG 2010

9. Preemption: 3 cases Grilled Chicken and PhIP. Physicians Committee for Responsible Medicine v. McDonalds Corp., 187 Cal. App. 4 th 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. RWG 2010

10. Preemption: 3 cases 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. American Meat Institute v. Leeman, 180 Cal. App. 4 th 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. RWG 2010

11. What’s a Practioner to do? 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