Chemical Specialties Manufacturers Association, Inc. (“CSMA”) filed this action below seeking a declaratory judgment that the Federal Insecticide, Fungicide, and Ro-denticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y (1988), and the Federal Hazardous Substances Act (“FHSA”), 15 U.S.C. §§ 1261-1277 (1988), preempt Proposition 65 warning requirements. The State of California filed an opposition. The district court found that no genuine issues of material fact existed, and entered a Memorandum-Decision and Order on September 11, 1990, granting the State of California’s motion for summary judgment.
I. FACTS
CSMA is a national trade association of insеcticide, disinfectant, and antimicrobial product manufacturers who sell their products to consumer, institutional, and industrial users. Many of the products manufactured by CSMA members are regulated under either FIFRA or FHSA. Both FI-FRA and FHSA have express preemption provisions that prohibit certain types of state regulation, including labeling requirements on products regulated under the Acts.
The California Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”) requires California to list substances that it determines to be carcinogenic or reproductively tоxic. Twelve months after a substance has been listed by the state, the manufacturers of products containing the listed substances must provide adequate warnings to the consuming public that their products pose a health risk. CSMA contends that the adequate warning requirements of Proposition 65, as applied to products regulated under FIFRA and FHSA, are preempted by these Acts.
*943 II. DISCUSSION
A. Standard of Review
A decision to grant or deny a summary judgment motion is reviewed
de novo. Kruso v. International Tel. & Tel. Corp.,
Since this is a facial challenge to Proposition 65, CSMA “must establish that no set of circumstances exists under which the Act would be valid. The fact that the [] Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid....”
United States v. Salerno,
There is a presumption against finding that state legislation is preempted by an act of Congress. Preemption analysis stаrts with the presumption that the traditional police powers of states are not displaced by federal law unless displacement was the “clear and manifest purpose of Congress.”
Rice v. Santa Fe Elevator Corp.,
In particular, “regulation of health and safety matters is primarily, and historically, a matter of local concern.”
Hillsborough County v. Automated Med. Labs, Inc.,
To find that Proposition 65 is preempted under FIFRA or FHSA, this court must determine that all possible consumer product warnings that would satisfy Proposition 65 conflict with рrovisions of the federal statutes. This case turns on this standard. The focus of the decision below was whether point-of-sale warnings constituted “labeling” under FIFRA or “directions for use” under FHSA. The court answered both questions in the negative, and granted summary judgment for the state. Since we agree with the district court that point-of-sale warnings are neither labels nor directions for use, we reject CSMA’s preemption arguments. No other Proposition 65 warning devices need be considered since point-of-sale signs are not preempted under either FIFRA or FHSA.
*944 B. The Statutory Background
1. Proposition 65
Proposition 65 provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.” Cal.Health & Safety Code § 25249.6 (West 1991). To satisfy this obligation, the statute explains that:
“Warning” within the meaning of Section 25249.6 need not be provided separately to each exposed individual and may be provided by general methods such as labels on consumer products, inclusion of notices in mailings to water customers, posting of notices, placing notices in public news media, and the like, provided that the warning accomplished is clear and reasonable.
Id. at § 25249.11(f). Proposition 65 therefore provides several methods of compliance: (1) labeling on consumer products; (2) posting notices; (3) placing notices in the news media; (4) any other method providing clear and reasonable warning of the hazard. These methods are further expanded in the safe harbor regulations promulgated by the California Health and Welfаre Agency. The safe harbor regulations designate the following language as sufficient to satisfy Proposition 65: “Warning: This product contains a chemical known to the State of California to cause cancer.” Cal.Code Regs. tit. 22, § 12601(b)(4)(A) (1991). A retail outlet can comply with Proposition 65 by posting a sign in a visible place specifying the products that are known to the state to cause cancer or that are reproductively toxic. Cal.Code Regs. tit. 22, § 12601(b)(3) (1991).
2. FIFRA
FIFRA requires the Environmental Protection Agency (“EPA”) to register a pesticide before the pеsticide can be sold or used. 7 U.S.C. § 136a(a) (1988). The statute and supporting regulations contain detailed requirements for registration. Basically, the requirements are that a pesticide may not be sold (with certain exceptions) unless the EPA first determines that the product’s labeling contains warnings and directions for use that are “adequate to protect the public from fraud and from personal injury and to prevent unreasonable adverse effects on the environment.” 40 C.F.R. §§ 156.10(i)(l)(i), 156.10(h) (1991); see also 40 C.F.R. §§ 156.10(a)(l)(vii), 156.-10(a)(l)(viii) (1991); 7 U.S.C. § 136a(c)(5)(B). Once the EPA has registered a pesticide and approvеd its label, the manufacturer may not change the label without the EPA’s prior approval.
FIFRA’s preemption clause provides as follows:
§ 136v Authority of States
(a) In general
A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchap-ter.
7 U.S.C. § 136v (1988). So long as additional labeling is not required, FIFRA expressly authorizes state pesticide regulation. Other than regulating labels, states are left free to impose whatever restrictions they may wish. Consequently, a state could prohibit the sale of a pesticide within its borders even though it could not require the manufacturer of the pesticide to change the label.
Both parties to this appeal agree that Congress included the preemption provision in FIFRA to promote uniformity and ease distribution practices for chemical product manufacturers. CSMA asserts that the uniformity objective is founded on the belief that consumеrs traveling between states would be confused by different labels on the same products. In support of this argument, CSMA quotes the following comment from Congressman Sisk at the congressional hearings on the 1972 FIFRA amendments:
*945 As I understand, Mr. Ackerly [CSMA counsel], you desire what in essence, would be Federal preemption as to labeling or as to standards on household items in connection with labeling and of the word “Poison” in certain instances. I am inclined to agree with you because I do not see how else we can really inform people who do not intend tо stay in the same place, and will be reading labels in other States.
Hearings Before Comm, on Agriculture, House of Representatives, 92d Cong., 1st Sess. 287 (Mar. 8, 1971). According to CSMA, the importance of a uniform labeling system under FIFRA is rooted in a concern for clarity so that consumers can easily recognize warning labels no matter which state they enter. CSMA then suggests that the point-of-sale signs required under Proposition 65 defeat this congressional purpose by requiring additional labeling that creates consumer confusion.
CSMA’s argument, however, is circular. The issue before us is whether Proposition 65 requires additional product “labeling.” Certainly, if we conclude that point-of-sale signs are additional labels, then those signs are preempted by FIFRA. Citing legislative history that explains why additional labeling is preempted, however, does not address the issue of what constitutes additional labeling. The labels attached to the chemical containers remain unchanged by Proposition 65.
3. FHSA
FHSA requires labeling of certain consumer products intended for use in the household or by children. The central requirement of the Act is that manufacturers of hazardous products provide cautionary labels clearly indicating the hazards and providing consumers with directions for use. The amendments to the Act contain a limited preemption provision which provides as follows:
[I]f a hazardous substance or its packaging is subject to a cautionary labeling requirement under section 2(p) or 3(b) [15 U.S.C. §§ 1261(p) or 1262(b) ] designed to protect against a risk of illness or injury associated with the substance, no State ... may establish or continue in effect a cautionary labeling requirement appliсable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical to the labeling requirement under 2(p) or 3(b).
15 U.S.C. § 1261 note (b)(1)(A) (1988) (Effect Upon Federal and State Law, § (b)(1)(A), Pub.L. 94-284 § 17(a)). The preemption issues arising under FHSA are identical to those arising under FIFRA. We must similarly determine whether the point-of-sale signs that satisfy Proposition 65 fall within the preemption clause of FHSA.
C. Whether Proposition 65 Warnings Constitute a State Requirement for Labeling that Is Preempted under FI-FRA.
1. Express Preemption under FIFRA.
CSMA points out that FIFRA expressly prohibits states from imposing labeling requirements that differ from those registered with the EPA. CSMA then argues that the warnings required under Proposition 65 fall squarely with FIFRA’s definition of “labeling.” Consequently, CSMA asserts that Proposition 65 is expressly preempted by FIFRA. We agree that additional labeling requirements would be unconstitutional under FIFRA. However, we disagree that the warning requirements of Proposition 65 constitute additional labeling.
FIFRA defines the term labeling as follows:
§ 136(p) Label and labeling
(1) Label
The term “label” means the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappеrs.
(2) Labeling
The term “labeling” means all labels and all other written, printed, or graphic matter—
(A) accompanying the pesticide or device at any time; or
*946 (B) to which reference is made on the label or in literature accompanying the pesticide or device....
7 U.S.C. § 136(p)(2) (1988). Under this definition, Proposition 65 warnings clearly are not “labels” within the meaning of paragraph (1), since point-of-sale warnings are neither written on the pesticide nor attached to it. The question remains, however, whether these warnings constitute “labeling” under paragraph (2) above.
CSMA argues that the point-of-sale signs constitute labeling beсause they are written materials that accompany the pesticide at the point of sale. It claims that since FIFRA defines labeling as “all other written, printed, or graphic matter ... accompanying the pesticide ... at any time,” Proposition 65’s warning methods all fall within this broad definition. This interpretation, however, cannot be correct.
FIFRA’s definition of labeling cannot encompass every type of written material accompanying the pesticide at any time. If this were true, then price stickers affixed to shelves, sheets indicating thаt a product is on sale, and even the logo on the exterminator’s hat would all constitute impermissible labeling.
The leading case that interprets the term “labeling” as defined by FIFRA is
New York State Pesticide Coalition, Inc. v. Jorling,
New York passed legislation that set forth notification requirements “intended to alert the public to the impending use of poisonоus chemicals and to disseminate information to those who may be exposed.”
Jorling,
The Jorling Court interpreted the same language from FIFRA as we must now interpret, and it concluded that the posted signs did not constitutе labeling. Consequently, the New York notification law was not preempted. The Court stated:
Because the notification materials are present in some spatial and temporal proximity to the applied pesticide, it is asserted they “accompany” it. But this definition is rather strained. “Labeling” is better understood by its relationship, rather than its proximity, to the product.
... FIFRA “labeling” is designed to be read and followed by the end user. Generally, it is conceived as being attached to the immediate container of the product in such a way that it сan be expected to remain affixed during the period of use.
Jorling,
CSMA cites Jorling for the proposition that FIFRA preempts state laws that require manufacturers to provide supplemental product warning information to the end user. Yet, Jorling cannot possibly stand for this proposition. The issue in Jorling was whether the posting of signs constituted labeling, and the court held that it did not. Id. The court examined the common usage of the term “labeling” and concluded that it did not apply to the posted notices required under the New York State law at issue in that case. Similarly, we conclude that the term “labeling” does not apply to the point-of-sale signs required under Proposition 65. Point-of-sale signs are not attached to the immediate container of a product and will not accompany the product during the period of use.
CSMA also cites
Kordel v. United States,
2. Implied Preemption under FIFRA.
CSMA argues that Proposition 65 is impliedly preempted by FIFRA for two reasons. First, CSMA asserts that manufacturers must seek EPA approval of new labels, when Proposition 65 requires additional warnings for the pesticide, to avoid the risk of misbranding products. The argument essentially is that by supplementing the EPA-approved label to provide an additional warning, the manufacturer implicitly acknowledges that the EPA-approved label is incomplete, thereby subjecting the manufacturer to an EPA sanction for misbranding its products. Second, CSMA argues that when Proposition 65 requires additional warnings, the manufacturers must change their labels to avoid product liability suits. Although the first of these arguments is weak, the second is not.
FIFRA provides that a pesticide is mis-branded if the warning on the label is insufficient to protect the public health. 7 U.S.C. § 136(q)(l)(G) (1988). As manufacturers uncover additional information about the health risks of their products, they must bring this information to the attention of the EPA and add this information to their product labels. CSMA argues that manufacturers who are required by Proposition 65 to post point-of-sale notices become liable under FIFRA for mis-branding their products. CSMA has cited no cases in support of this argument. It seems implausible that the EPA would prosecute a company for, in essence, complying with Proposition 65.
Manufacturers only become liable for misbranding when their labels are insufficient, not for posting additional warning signs as dictated by state law. If manufacturer awareness of new product risks is triggered by the State of California’s list of chemicals known to cause cancer or reproductive toxicity, then the list of chemicals merely uncovers hazards that should have been uncovered by the manufacturers. The more likely scеnario is that the hazards of a chemical are already known to both the manufacturer and the EPA, but that neither believes that cancer or reproductive toxicity is a likely danger. In this scenario, it seems contradictory to assert that the EPA will prosecute a company for satisfying the standards developed by the EPA but deemed insufficient by the State of California.
CSMA’s second argument in support of implied preemption is that manufacturers would be obligated to change their labels when California requires additional point-of-sale warnings. Otherwise, the manufacturers would be at risk of product liability suits for inadequate warning. This argument has merit. The issue is whether manufacturers can incur tort liability for inadequate warnings on products regulated under FIFRA. If they can, then perhaps plaintiffs could argue that the Proposition 65 warnings reveal the inadequacies of the EPA approved labels. Proposition 65 does have an express provision, however, that the warnings shall not be construed to establish exposure levels for any other regulatory purpose. Cal.Code Regs. tit. 22, §§ 12701(d), 12801(e) (1991).
Proposition 65 neither expressly nor impliedly requires additional product labeling. Consequently, manufacturers need not feel pressure to apply for EPA approval of label changes so that they can comply with Proposition 65. Point-of-sale signs are sufficient to satisfy the California requirements. Whether these signs create legit- *948 innate fears of product liability suits in other states for failing to warn of the dangers listed on the point-of-sale warnings in California, however, merits discussion. CSMA makes a good point when it claims that no manufacturer wants to face a jury in a defective labeling case arguing that a cancer, reproductive or developmental hazard warning not given in the forum state was given in California only to comply with Proposition 65. The argument, however, fails for two reasons. First, it is not clear whether plaintiffs can sue for defective labeling of products regulated by FIFRA. Second, even if they could, a point-of-sale warning required by Proposition 65 is not an admission of liability.
The case law is split on whether plaintiffs can sue manufacturers for defective labeling of products regulated by FIFRA. The аrgument against product liability suits for inadequate labeling is strong. State tort liability holds manufacturers liable for failing to include an adequate warning on the product’s label. Since FIFRA expressly preempts additional state labeling requirements, the tort suits could circumvent the preemption clause by effectively requiring additional labeling to avoid tort liability even though the states do not expressly require the additional labeling.
In
Fitzgerald v. Mallinckrodt, Inc.,
Where the federal government has preempted any state regulatiоn, there can be no recovery in tort. Allowing recovery under state tort law where Congress has preempted state law would effectively authorize the state to do through the back door exactly what it cannot through the front. FIFRA expressly provides that no state may impose “any requirement for labeling or packaging in addition to or different from those required under this Act.” 7 U.S.C. § 136v(b).
An equal weight of authority, however, suggests that product liability claims for inadequate warnings are not preempted by FIFRA. Cases finding no preemption include
Arkansas Platte & Gulf Partnership v. Van Waters & Rogers, Inc.,
Only two federal appellate courts have addressed the issue and these two cases are split as well. In
Ferebee v. Chevron Chem. Co.,
3. Frustration of Congressional Purpose.
For purposes of preemption analysis, CSMA must show a physical impossibility of complying with both Proposition 65 and
*949
FIFRA before succeeding on a claim that Proposition 65 is preempted on this theory. The Supreme Court has stated that the proper approach is to “reconcile the operation of both statutory schemes with one another rather than holding [that one has been] completely ousted.”
Ray v. Atlantic Richfield Co.,
D. Whether Proposition 65 Warnings Constitute a State Requirement for Labeling that is Preemрted under FHSA.
CSMA argues that FHSA § 17(b) expressly preempts all state mandated precautionary labeling that is not identical to that required by the Act. This is correct. FHSA § 17(b)(1)(A) provides as follows:
[N]o State ... may establish or continue in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical....
15 U.S.C. § 1261 note (1988) (Effect Upon Federal and State Law, § (b)(1)(A), Pub.L. 94-284 § 17(a)). Under the FHSA, however, “all accompanying literature where thеre are directions for use, written or otherwise” is defined as cautionary labeling, 15 U.S.C. § 1261(n)(2) (1988). Accompanying literature is defined as follows:
[A]ny placard, pamphlet, booklet, book, sign, or other written, printed, or graphic matter or visual device that provides directions for use, written or otherwise, and that is used in connection with the display, sale, demonstration, or merchandising of a hazardous substance intended for ... use in the household or by children.
16 C.F.R. § 1500.3(c)(9) (1991). CSMA’s contention that Proposition 65 point-of-sale warnings fall within this definition is implausible for two reasons. First, Proрosition 65 warnings are not “directions for use,” and second, the warnings are not necessarily nonidentical.
CSMA creates several strained analogies to make the argument that Proposition 65 warnings are directions for use, and therefore constitute labeling under FHSA. For example, CSMA claims that Proposition 65 warnings contain both a signal word and a statement of principle hazard: Warning, this product contains a chemical known to the State of California to cause cancer. The argument is founded upon the misconception that sinсe this warning impliedly directs the consumer to handle the product so as to avoid or minimize direct exposure, the warning is a direction for use. Basically, CSMA argues that since Proposition 65 warnings of cancer or reproductive toxicity convey information about the product’s dangers and the need to use the product cautiously, they are directions for use. We do not believe Congress intended such a broad reading of that term.
During the trial below, Judge Smith illustrated the nonsensical reading CSMA gives to the term “directions for use” when she noted during oral argument that a sign stating “this product may cause birth defects:”
[D]oesn’t tell you whether it’s going to cause defects if you pour it on your feet, or if you drink it, or if you poke it in your ear, it just says that it may cause birth defects. How is that a direction for use?
Such a warning cannot, by definition, be a direction for use.
See Burch v. Amsterdam Corp.,
As the State points out, Congress more likely had a common sense definition of the term “directions for use,” such as how much of a detergent to use, or how long a paint solvent should be mixed. CSMA’s argument that Proposition 65 warnings constitute directions for use was rejectеd below as counter to the plain meaning of the term. The argument simply does not comport with common sense.
*950 Furthermore, Proposition 65 warnings are not necessarily nonidentical to the warnings required under FHSA. FHSA does not require any specific language in its warnings. The Act merely requires (1) that labels contain the signal word “WARNING” or “CAUTION” and (2) words which describe the potential hazard. Consequently, a message such as the following could comply with both Proposition 65 and FHSA: “Warning, this product contains materials known to the State of California to cause cancer.”
Finally, we see no congressional purpose frustrated by Proposition 65. Congress apparently sought to balance its concern for a national safety standard with its desire for the states to promulgate their own sales and warning requirements. The legislative history makes this clear:
This preemption scheme is designed to meet the competing interests of those who view Federal requirements as merely minimum standards and those who would opt for uniform national requirements.
S.Rep. No. 94-251, 94th Cong., 2d Sess. (1976),
reprinted, in
1976 U.S.Code Cong. & Admin.News 993, 1004.
See also CSMA v. Lowery,
AFFIRMED.