COSMETIC, TOILETRY & FRAG. ASS'N, INC. v. State of Minn.

• Decision Date: 30 November 1977
• Docket Number: No. Civ. 3-77-434.,Civ. 3-77-434.
• Citation: 440 F. Supp. 1216
• Parties: The COSMETIC, TOILETRY AND FRAGRANCE ASSOCIATION, INC., Faberge, Incorporated, Revlon, Inc., and Estee Lauder Inc., Plaintiffs, v. STATE OF MINNESOTA, Warren Spannaus, Attorney General for the State of Minnesota, Minnesota Pollution Control Agency, an agency of the State of Minnesota, and its Executive Director, Defendants.
• Court: U.S. District Court — District of Minnesota

440 F. Supp. 1216

The COSMETIC, TOILETRY AND FRAGRANCE ASSOCIATION, INC., Faberge, Incorporated, Revlon, Inc., and Estee Lauder Inc., Plaintiffs, v. STATE OF MINNESOTA, Warren Spannaus, Attorney General for the State of Minnesota, Minnesota Pollution Control Agency, an agency of the State of Minnesota, and its Executive Director, Defendants.

No. Civ. 3-77-434.

United States District Court, D. Minnesota, Third Division.

November 30, 1977.

COPYRIGHT MATERIAL OMITTED

Matthew J. Levitt, Lee Bearmon, J. Patrick McDavitt, Levitt, Palmer, Bowen, Bearmon & Rotman, Minneapolis, Minn., for plaintiffs.

Warren Spannaus, Atty. Gen., Byron E. Starns, Chief Deputy Atty. Gen., Kenneth E. Raschke, Jr., Asst. Atty. Gen., and Stephen A. Shakman, Special Asst. Atty. Gen., St. Paul, Minn., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DEVITT, Chief Judge.

In this action challenging the constitutionality of Minnesota Laws 1977, ch. 373, § 1, subd. 2, plaintiffs, a non-profit, incorporated trade association for the cosmetic industry and three individual cosmetic manufacturers and distributors, initially moved for an order temporarily restraining defendants from enforcing or implementing the questioned statute until a hearing could be held on a further motion for a preliminary injunction. Prior to any consideration of that motion, the court informally requested that plaintiffs notify defendants of the motion and set a hearing date. The hearing was held on October 20, 1977 at which time the parties agreed that the motion could be treated as one for a preliminary junction provided further briefs could be submitted by October 26, 1977. The briefs were timely filed, and the court issued a preliminary injunction on October 31, 1977. This memorandum is intended to set forth the court's findings of fact and conclusions of law in conformity with Rule 52(a) of the Federal Rules of Civil Procedure.

The challenged statute, enacted on May 21, 1977, requires that any pressurized container employing a saturated chlorofluorocarbon propellant sold at wholesale within Minnesota on or after October 31, 1977 shall display on its front panel the following warning:

Warning: Contains a chlorofluorocarbon that may harm the public health and environment by reducing ozone in the upper atmosphere.

This warning is a preparatory step toward the total ban of such propellants effective July 1, 1979. Minnesota Laws 1977, ch. 373, § 1, subd. 1. This procedure parallels that taken by the United States Food and Drug Administration (FDA) in its attempt to regular chlorofluorocarbon propellants for cosmetics under the authority of the Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. § 301, et seq. (1970). On April 26, 1977, the FDA promulgated a regulation which requires a warning identical to that required by the challenged statute, 42 F.R. 22033 (1977), and on May 10, 1977 proposed a rule banning such propellants after April 15, 1979, 42 F.R. 24541 (1977). Although the warnings required by the FDA and the state are identical in content and extremely similar in most other respects, plaintiffs point to four inconsistencies, two involving warning placement and two concerning effective date, which allegedly make compliance with both rules unduly burdensome, if not impossible.¹

The most important distinctions between the FDA regulation and the challenged statute are with regard to the placement of the warning. The federal rule requires that the warning ". . . appear on an appropriate panel with such prominence and conspicuousness as to render it likely to be read and understood by ordinary individuals under normal conditions of purchase." The Minnesota statute unequivocally states that the warning shall appear on the front panel. Furthermore, the regulation takes the functional approach of allowing the warning to be placed where it will most effectively trigger purchaser awareness, while the statute stipulates that the warning appear on the immediate container.

The law in this circuit is clear with respect to the dual showing movants must make in order to obtain a preliminary injunction. They must show a substantial probability of success at trial on the merits and irreparable harm absent the grant of injunctive relief. American Train Dispatchers Assn. v. Burlington Northern, Inc., 551 F.2d 749 (8th Cir. 1977) and Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323 (8th Cir. 1973). In the latter case, the court also indicated other factors which might be considered by the court, specifically absence of substantial harm to other interested parties and absence of harm to the public interest. This latter statement impliedly affirmed the practice of this district in which all four tests must be met before a preliminary injunction will issue. Cox v. Northwest Airlines, Inc., 319 F.Supp. 92 (D.Minn.1970). These factors will be considered seriatim.

I.

Plaintiffs base their constitutional attack on two separate theories—(1) that state legislation in the area of aerosol product labeling has been pre-empted by federal regulation in this field and is therefore unconstitutional under the Supremacy Clause of the United States Constitution, U.S.Const. art. VI, cl. 2; and (2) that the statute effects an unreasonable burden on interstate commerce violative of the Commerce Clause, U.S.Const., art. I, § 8, cl. 3. Since the court preliminarily concludes that state legislation with regard to the ozone deterioration warning has been pre-empted by the FDA's regulation, the second aspect of plaintiffs' argument need not be considered.

The court initially must approach the question of federal pre-emption from the viewpoint that a finding of pre-emption is the exception rather than the rule.

If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed. Schwartz v. Texas, 344 U.S. 199, 202-203, 73 S.Ct. 232, 235, 97 L.Ed. 231 (1952).

Given that point of departure, the court must examine the language and purpose of the federal statute, its legislative history, its field of operation, and points of literal and practical conflict between the federal and state enactments to determine whether the heavy burden of demonstrating pre-emption has been met. The most recent comprehensive opinion in this circuit setting forth the format for judicial analysis when a pre-emption issue is raised is that of former Chief Judge Matthes in Northern States Power Co. v. State of Minnesota, 447 F.2d 1143, 1146-47 (8th Cir. 1971), aff'd, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972). The prescribed analysis is basically four-tiered. As was the case in Northern States Power Co., only the fourth and final step is disputed in this case. That is, no one contends that the FDA exceeded its statutory authority in promulgating the federal rule or that Congress acted unconstitutionally in permitting this type of regulation under the Food, Drug, and Cosmetic Act; that compliance with both the federal regulation and the state statute is physically impossible; or that the Food, Drug, and Cosmetic Act contains an express pre-emption provision. Therefore, the analysis must turn to the doctrine of implied pre-emption.

In Northern States Power Co., Judge Matthes articulated four key factors which must be considered in determining whether pre-emption of a particular area of regulation has occurred. These factors, distilled from the many cases which have considered pre-emption questions, are:

(1) the aim and intent of Congress as revealed by the statute itself and its legislative history . . .; (2) the pervasiveness of the federal regulatory scheme as authorized and directed by the legislation and as carried into effect by the federal administrative agency . . .; (3) the nature of the subject matter regulated and whether it is one which demands "exclusive federal regulation in order to achieve uniformity vital to national interests." . . .; and (4) "whether, under the circumstances of a particular case state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Northern States Power Co., supra at 1146-47.

The court has examined recent pre-emption cases and has concluded that these tests retain continued force today. Although slightly more of the recent Supreme Court cases have refused to find pre-emption when the issue was raised, the court is not convinced, as defendants contend, that there is an emerging presumption against pre-emption any stronger than that previously stated — that pre-emption is the exception rather than the rule.² Alleged trends of this sort are particularly unhelpful in this area of the law where each case must turn on an examination of the particular federal and state regulatory schemes in question.

Now, turning to the first of these four factors, neither party has been able to point to any aspect of the statute or to any legislative history which sheds light on the question of congressional intent to pre-empt state regulation in the enactment of the Food, Drug, and Cosmetic Act of 1938. A brief examination of the history of food, drug, and cosmetic regulation in this country leads the court to believe that pre-emption of the type at issue in this case was not considered important by Congress at the time the statute was passed. However, subsequent events and enactments indicate that Congress would desire pre-emption if the issue were to be raised today.

Historically, except in rather limited circumstances, the FDA has enforced the requirements of the Food, Drug, and Cosmetic Act by promulgating non-binding interpretative regulations to be applied on a case-by-case, adjudicatory basis. Only in recent years has the agency begun to issue substantive...