Toy Mfrs. of America, Inc. v. Blumenthal

• Decision Date: 08 October 1992
• Docket Number: Civ. No. 2:92-620 (EBB).
• Parties: TOY MANUFACTURERS OF AMERICA, INC. v. Richard BLUMENTHAL, Attorney General of the State of Connecticut, and Gloria Schaffer, Commissioner, Department of Consumer Protection, State of Connecticut, individually and in their respective official capacities.
• Court: U.S. District Court — District of Connecticut

806 F. Supp. 336

TOY MANUFACTURERS OF AMERICA, INC. v. Richard BLUMENTHAL, Attorney General of the State of Connecticut, and Gloria Schaffer, Commissioner, Department of Consumer Protection, State of Connecticut, individually and in their respective official capacities.

Civ. No. 2:92-620 (EBB).

United States District Court, D. Connecticut.

October 8, 1992.

COPYRIGHT MATERIAL OMITTED

Duncan Ross MacKay, Robinson & Cole, Hartford, Conn., for plaintiff.

Robert M. Langer, Atty. Gen.'s Office, Anti-trust, Consumer Protection, Hartford, Conn., for defendants Blumenthal and Schaffer.

RULING ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

ELLEN B. BURNS, Senior District Judge.

Toy Manufacturers of America, Inc. ("TMA") filed this action seeking a declaratory judgment that (1) the Federal Hazardous Substances Act ("FHSA"), as amended, 15 U.S.C. §§ 1261-1277 (1982), pre-empts the toy labeling requirements in Connecticut's State Child Protection Act ("State CPA"), Conn.Gen.Stat. §§ 21a-335 — 21a-346 (1985), as amended by 1992 Conn. Acts 92-127, § 1 (Reg. Sess.) and 1992 Conn. Acts 92-11, § 57 (May Session); (2) the State CPA constitutes an impermissibly vague criminal statute in violation of the Plaintiff's rights under the Due Process Clause of the Fifth Amendment to the United States Constitution; and (3) the State CPA places an undue burden on interstate commerce in violation of the Commerce Clause of the United States Constitution, Article I, Sec. 8, cl. 3. TMA also seeks preliminary injunctive relief barring the State from enforcing the State CPA.

I. FACTS

This case presents a conflict between two indisputedly important interests: a state government, exercising its traditional police power, seeks to require labels on toys intended for children over three but which end up in the hands — and sometimes lodged in the throats — of children under three; and on the other side, the companies that make toys complain of the potentially severe economic burden they would face if numerous states each enact different labeling requirements for toys intended for children over three. According to an amicus brief supporting Connecticut's legislation, at least 17 children under three have died since 1980 by choking on a toy intended for older children.¹ (Mem. Amici Curiae U.S. Public Interest Research Group and Conn. Public Interest Research Group Opp. Prelim. Inj. at 4). And according to the Plaintiff, the potentially huge costs on toy makers is illustrated by the fact that several states have already proposed separate labeling requirements for toys intended for older children. See Ex. A to Pl.'s Repl.Mem.Supp.Prelim.Inj. In resolving the tension between two legitimate policy choices — toy safety and nationally uniform standards — the Court will look to the federal legislation which governs toy safety and its preclusive effect upon state law.

The Federal Hazardous Substances Act ("FHSA") governs federal regulation of toy safety. Under the FHSA, the definition of "hazardous substance" includes "any toy or other article intended for use by children which the Consumer Product Safety Commission by regulation determines ... presents an electrical, mechanical or thermal hazard." 15 U.S.C. § 1261(f)(1)(D) (1982). The term "mechanical hazard" includes an item which "if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness ... because the article (or any part or accessory thereof) may be aspirated or ingested...." 15 U.S.C. § 1261(s) (1982).

If a toy or other article intended for use by children is found to be a hazardous substance, the statute commands that it be banned completely from interstate commerce; no amount of labeling can make it safe. 15 U.S.C. § 1261(q)(1) (1982). Pursuant to these statutory provisions, the Consumer Product Safety Commission ("Commission") has classified as a banned hazardous substance "any toy or other article intended for use by children under 3 years of age which presents a choking, aspiration, or ingestion hazard because of small parts...." 16 C.F.R. § 1500.18(a)(9) (1992). Under the heading "Scope," the regulation is declared to apply to "all toys and other articles intended for use by children under 3 years (36 months) of age that are introduced into interstate commerce...." 16 C.F.R. § 1501.2(a) (1992). The same section continues, "this regulation does not apply to toys or articles which are solely intended for use by children 3 years of age or older." 16 C.F.R. § 1501.2(c) (1992). The parties have not pointed to, and the Court cannot find, any provision of the FHSA, or of the regulations thereunder, that addresses the sale or labeling of toys intended for children three years old or older which pose a risk of choking due to small parts.

The FHSA contains an express pre-emption provision, the applicability of which is the central issue before the Court. It states in relevant part:

... if under regulations of the Commission promulgated under section 2(q) 15 U.S.C. § 1261(q) a requirement is established to protect against a risk of illness or injury associated with a hazardous substance, no State ... may establish or continue in effect a requirement applicable to such substance and designed to protect against the same risk of illness or injury unless such requirement is identical to the requirement under such regulations.

15 U.S.C. § 1261 note (1982) (Effect Upon Federal and State Law, § (b)(1)(B), Pub.L. No. 94-284, § 17(a), 90 Stat. 510 (1976)).²

The State CPA addresses the risk to children under three presented by toys or other articles intended for the use of children between the ages of three and seven. Any such toy that would be banned under the federal standards if it were intended for children under three must be conspicuously labeled to warn that the toy contains small parts which pose a hazard for children under three. Conn.Gen.Stat. § 21a-337 (1985), as amended.

II. DISCUSSION

Before a court may issue a preliminary injunction, the moving party "must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief." Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991). When, as here, the moving party challenges "governmental action taken in the public interest pursuant to a statutory or regulatory scheme, it is held to the higher standard of showing a likelihood of success on the merits." Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989).³

A. Irreparable Harm

In a case involving the threatened regulation of airline advertising by seven states, the Supreme Court recently held that the moving party may demonstrate irreparable harm through a showing that State officers have "made clear that they would seek to enforce the challenged portions" of a state statute which is claimed to be pre-empted by federal law. Morales v. Trans World Airlines, Inc., ___ U.S. ___, ___, 112 S.Ct. 2031, 2035, 119 L.Ed.2d 157 (1992). Adapting to this case the Court's language in Morales, "plaintiffs are faced with a Hobson's choice: continually violate the Connecticut law and expose themselves to potentially huge liability; or violate the law once as a test case and suffer the injury of obeying the law during the pendency of the proceedings and any further review." Id. ___ U.S. at ___, 112 S.Ct. at 2035-36. As evidence of harm, TMA asserts that its members would face annual damages of approximately four million dollars, and one-time damages of one-half million dollars, if it complied with the State CPA. Aff. of David Miller, ¶ 11. Whether this alleged quantum of injury is of the same magnitude as that faced by the airlines in Morales is unclear; however, since the Defendant does not contest the point, the Court will assume that the monetary injury to TMA of complying with the State CPA is comparable to the injury faced by the airlines in Morales and therefore is sufficiently great to justify a finding of no remedy at law.⁴ Accordingly, the Court finds that the Plaintiff meets the first prong of the test for injunctive relief.

B. Likelihood of Success on the Merits

1. Pre-emption

In analyzing whether a state statute is pre-empted, a court must "start with the assumption that the historic police powers of the States are not to be superseded by the Federal Act unless that is the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981) (pre-emption not favored in absence of "persuasive reasons"); Motor Vehicle Mfrs. Ass'n v. Abrams, 899 F.2d 1315, 1319 (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1122, 113 L.Ed.2d 230 (1991). The presumption makes particular sense in light of the fact that, if a court erroneously finds pre-emption, the State has no recourse, whereas if a court errs in the other direction, Congress can make its pre-emptive intent explicit. As Chief Justice Rehnquist has emphasized: "Unless the requisite pre-emptive intent is abundantly clear, we should hesitate to invalidate state or local legislation for the added reason that `the state is powerless to remove the ill effects of our decision, while the national government, which has the ultimate power, remains free to remove the burden.'" City of Burbank Lockheed Air Terminal, Inc., 411 U.S. 624, 643, 93 S.Ct. 1854, 1864, 36 L.Ed.2d 547 (1973) (Rehnquist, J., dissenting) (quoting Penn Dairies, Inc. v. Milk Control Comm'n, 318 U.S. 261, 275, 63 S.Ct. 617, 624, 87 L.Ed. 748 (1943)); see also Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 488 (9th Cir.1984), cert. denied, 471 U.S. 1140,...