107 F.4th 934
9th Cir.2024Background
- The American Apparel & Footwear Association and allied trade groups challenged parts of the Oregon Toxic-Free Kids Act (TFKA) and associated regulations, arguing they are preempted by federal law—specifically, the Federal Hazardous Substances Act (FHSA) and the Consumer Product Safety Act (CPSA).
- The TFKA requires manufacturers to report and potentially remove or substitute chemicals deemed high-priority by the Oregon Health Authority (OHA), unless exempted through specific criteria.
- Plaintiffs asserted that Oregon’s law and rules imposed requirements different from federal standards, targeting 73 chemicals on the OHA’s list.
- The lawsuit presented a facial preemption challenge (arguing the law is invalid in all applications), not an as-applied challenge to specific scenarios.
- The district court dismissed the facial preemption claims, holding federal agencies had not exercised the regulatory judgment necessary to trigger federal preemption for all relevant chemicals.
- Plaintiffs appealed the dismissal; the Ninth Circuit affirmed the district court’s ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TFKA is expressly preempted by FHSA/CPSA | Commission does not have to regulate each chemical; embedded statutory definitions trigger preemption | Preemption requires Commission to act with discretion and judgment on each chemical | No express preemption; Congressional intent requires agency action for preemption |
| Whether TFKA is conflict preempted by CPSA | Non-identical state requirements obstruct Congressional objectives | TFKA is valid where Commission has not regulated specific chemicals | No conflict preemption; law not preempted in all applications |
| Applicability of facial preemption standard | Law is invalid in all applications | Law may have valid scope where federal regulation absent | Plaintiffs failed to show no valid application; facial challenge fails |
| Effect of merely repeating federal statutory definitions in regulation | Such repetition triggers preemption across all similar state provisions | Statutory repetition is for convenience, not an act of agency judgment | Repetition alone does not trigger preemption |
Key Cases Cited
- Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) (facial preemption challenge requires showing law is invalid in all applications)
- United States v. Salerno, 481 U.S. 739 (1987) (no set of circumstances standard for facial challenges)
- Toy Manufacturers of America, Inc. v. Blumenthal, 986 F.2d 615 (2d Cir. 1992) (FHSA preempts state law only where Commission has specifically regulated the substance and risk)
- X-Tra Art v. Consumer Product Safety Commission, 969 F.2d 793 (9th Cir. 1992) (CPSC may enforce FHSA via statutory definitions in some circumstances, but enforcement does not equal preemption)