Dennis Raglin Quoted in Chemical Watch: “US Supreme Court Ruling on FIFRA Preemption Could ‘Supercharge’ Prop 65 Challenges”

Dennis Raglin was quoted in a Chemical Watch article titled “US Supreme Court Ruling on FIFRA Preemption Could ‘Supercharge’ Prop 65 Challenges.” The article discusses the recent U.S. Supreme Court ruling in Monsanto Co. v Durnell on the scope of preemption under the nation’s pesticide law, which legal experts say could significantly expand legal challenges to warning requirements under California's Proposition 65 scheme.

Raglin stated that the Supreme Court's decision means certain Prop 65 warnings could be vulnerable to federal preemption. The ruling suggests preemption could extend to "any regulation that requires an agency be charged with ensuring uniform national effect," if that uniformity would be frustrated or weakened by a contradictory state warning, he said.

There are implications for other labeling schemes as well. Preemption issues have been raised in other contexts in the past, for products subject to the Federal Food, Drug, and Cosmetic Act (FD&C Act) or consumer items regulated by the Federal Hazardous Substances Act (FHSA). Raglin said the key distinguishing factor "is the goal of uniformity in labeling" in the underlying statute.

For example, the California Court of Appeal in 2023 ruled that generic over-the-counter drug makers are exempt from Prop 65, holding that the "duty of sameness" preempted Prop 65. Raglin, who was part of the legal team that secured the appellate ruling, said that the court found that OTC drugs" must use the same language as a brand drug and cannot add a state warning which would defeat the need for uniform patient safety information." Some level of preemption could also apply to cosmetics regulated under the Modernization of Cosmetics Regulation Act (MoCRA), which was intended to provide uniform and consistent regulation of cosmetics, he added.

The ruling in Durnell specifically noted the labeling and packaging requirements for cosmetics under the FD&C Act as being similar to FIFRA. And in the decision, the justices made it clear "that where federal regulations explicitly prevent states from requiring labelling or warning that is additional to or different from that allowed by regulation, it creates a binding standard," Raglin said.

Ultimately, the Durnell ruling could help "supercharge preemption challenges" to Prop 65, Raglin said, including at the state court level. The Supreme Court’s decision in Durnell follows a string of recent industry wins in First Amendment cases that successfully blocked Prop 65 warning requirements for substances where there is no strong scientific consensus on toxicity. The cases, all heard in federal courts, turned on the notion that the government cannot compel speech that is not "purely factual and uncontroversial."

Taken together, the Supreme Court decision and the First Amendment cases could give California state courts hearing Prop 65 challenges the legal precedent necessary to find that warnings for other substances are preempted or unconstitutional, Raglin said. State courts have thus far largely avoided wading into constitutional challenges to Prop 65, but the combination of these cases could change that, he said.

There will be more Prop 65 chemicals "found to be either preempted or in violation of the First Amendment," he predicted.

Read the article. Subscription may be required.