California Can’t Usurp USEPA’s Authority Over Roundup® Labeling

Commentary, Federal Preemption /

California’s Attorney General just doesn’t get it. Maybe he’s been watching too many of those slick infomercials trolling for Roundup® “victims.” In 1972 Congress enacted a law—the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)—that gives the U.S. Environmental Protection Agency (EPA) sole and exclusive authority to regulate the content of pesticide product labeling. FIFRA vests EPA […]

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EPA Finally Flexes Some Preemption Muscle

Commentary, Federal Preemption /

Note:  On August 26, 2019, the Washington Legal Foundation published this article as part of its Legal Pulse blog.   FIFRA, the federal pesticide statute, gives the U.S. Environmental Protection Agency (EPA) exclusive authority to regulate the content of pesticide labeling, including health & safety warnings. Section 24(b) unequivocally declares that a “State shall not impose .

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Supreme Court’s Sports Betting Decision Reveals Hidden Preemption Requirement

All Publications, Federal Preemption, Published Articles, US Supreme Court /

On May 14, the Supreme Court held in Murphy v. National Collegiate Athletic Association that the federal Professional and Amateur Sports Protection Act (“PASPA”) is unconstitutional. The Court ruled that PASPA’s  prohibition against States authorizing sports betting violates the “anticommandeering principle,” which precludes Congress from directing States to take, or refrain from taking, particular legislative

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It’s Time To Fix FIFRA Preemption

All Publications, Federal Preemption, Published Articles /

Under FIFRA, the federal pesticide law, the U.S. Environmental Protection Agency (EPA) and state agencies both have authority to regulate the sale and use of agricultural, industrial, structural, and consumer pesticides, but only EPA can regulate the content and format of nationally uniform pesticide product labeling. Emboldened by a 1991 Supreme Court decision, and despite state-imposed preemption

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Is It Finally Time To Fix FIFRA Preemption?

All Publications, Commentary, Federal Preemption, Published Articles /

FIFRA is the comprehensive federal statute that for the past 70 years has regulated “pesticides”—a term which encompasses a broad range of agricultural, professional, industrial, and consumer pest control products.   One of the most persistent as well as hotly contested areas of pesticide regulation involves the subject of “preemption”—the supremacy of federal law over

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A Closer Look At “Preemptive” Federal Contract Terms

All Publications, Federal Preemption, Published Articles /

Subrogation of insureds’ third-party claims is not a subject that excites too many lawyers. But in Coventry Health Care of Missouri Inc. v. Nevils, No. 16-149, decided on April 18, 2017, the Supreme Court issued a subrogation-related opinion that will be of interest to anyone who tracks the Court’s federal preemption jurisprudence.  In particular, the

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Can Federal Contract Requirements Preempt State Law?

All Publications, Federal Preemption, Published Articles, US Supreme Court /

The only thing predictable about the U.S. Supreme Court’s  decisions on federal preemption — a subject that strikes at the heart of federalism — is the odd way that the Justices spell “pre-emption.” While the Court’s implied preemption (field preemption and conflict preemption) case law is particularly difficult to reconcile, the Court in recent years

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Supreme Court Punts On Another Federal Preemption Product-Liability Conundrum

Commentary, Federal Preemption, US Supreme Court /

What do prescription drugs, motor boats, pesticides, automobiles, medical devices, locomotives, cigarettes, vaccines, and oil tankers have in common?  During the past 25 years, each has been the subject of at least one Supreme Court opinion concerning federal preemption of state-law product liability claims.  No uniform rule has emerged from those opinions (e.g., there is

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Is It Express? Is It Implied? Is It Preempted?

Commentary, Federal Preemption, US Supreme Court /

Every first-year law student learns the taxonomy of federal preemption principles: Although the Supreme Court’s Supremacy Clause cases frequently rely on this preemption lexicon, the Court long ago indicated that these categories are not “rigidly distinct.” English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990). The Court’s April 19, 2016 opinion in Hughes

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