[00:00:04] Speaker 05:
Okay.

[00:00:05] Speaker 05:
Council, I think we're ready for your argument.

[00:00:07] Speaker 01:
Good morning, Your Honours.

[00:00:08] Speaker 01:
Thank you.

[00:00:08] Speaker 01:
I'd like to reserve five minutes for rebuttal, if I may?

[00:00:11] Speaker 05:
You bet.

[00:00:12] Speaker 05:
Just keep an eye on the clock, please.

[00:00:13] Speaker 01:
Will do.

[00:00:15] Speaker 02:
Counsel, let me say, I have taught federal courts and federal procedure for 38 years.

[00:00:21] Speaker 02:
This has got to be one of the most complex, confusing preemption cases I have ever seen.

[00:00:27] Speaker 02:
So maybe you and your able opposing counsel can do whatever you can to help us weed through this.

[00:00:36] Speaker 01:
I'll try and keep it as simple as possible.

[00:00:38] Speaker 01:
And believe me, I wrote the briefing.

[00:00:40] Speaker 01:
You have my sympathies.

[00:00:41] Speaker 05:
So start by stating your appearance for the record, if you would.

[00:00:43] Speaker 01:
Oh, sorry.

[00:00:44] Speaker 01:
It's Dwayne Clifford.

[00:00:45] Speaker 01:
Take it away.

[00:00:47] Speaker 05:
That's OK.

[00:00:47] Speaker 05:
We're anxious to get to this one.

[00:00:49] Speaker 05:
I want to get that on the record.

[00:00:50] Speaker 05:
So go right ahead.

[00:00:51] Speaker 01:
We'll start where you want to start.

[00:00:53] Speaker 01:
May it please the court?

[00:00:54] Speaker 01:
Sure.

[00:00:55] Speaker 01:
We're here and I'll try and address your questions, Judge Ezra, which is we're here really to declare three provisions of the Oregon Toxic Flea Kids Act as preempted by the Federal Hazardous Substances Act and the Consumer Protection Safety Act.

[00:01:10] Speaker 01:
Because those are inconsistent with and under the language of the express preemption rule, they are not identical.

[00:01:20] Speaker 01:
That is really a pretty simple analysis when you get down to it.

[00:01:23] Speaker 01:
I realize all of the rules are complex.

[00:01:25] Speaker 01:
A lot of CFRs issued it here.

[00:01:28] Speaker 01:
But when you get down to it, the standard here under the Puerto Rico case is looking at the language of the statutes themselves.

[00:01:36] Speaker 01:
And the express preemption statute here says it's preempted unless it's identical.

[00:01:40] Speaker 01:
There's two provisions, both we call the notice regulations, Your Honor, and what those require is for any manufacturers of a children's product to provide notice of 73 chemicals that Oregon has selected and called high priority chemicals of concern for children's health.

[00:02:00] Speaker 01:
Once that notice is given three times, and those are due every two years, then that article has to be changed or it is banned.

[00:02:09] Speaker 01:
In other words, those have to be removed or substituted unless then there's a ban.

[00:02:13] Speaker 01:
And so in order to get around that ban, what Oregon has said is you have to go to Oregon and essentially ask for buy your leave.

[00:02:20] Speaker 05:
I'm really anxious.

[00:02:21] Speaker 05:
We know the Oregon part.

[00:02:22] Speaker 05:
Could you get to 1261 Q1 AMV?

[00:02:26] Speaker 05:
The question is this.

[00:02:32] Speaker 04:
The express preemption provision there is slightly different than in the Consumer Product Safety Act and it's not quite as clear, I would say.

[00:02:41] Speaker 04:
Maybe you think it's clear and you can enlighten us.

[00:02:44] Speaker 04:
But my question is this.

[00:02:48] Speaker 04:
The express preemption talks about

[00:02:52] Speaker 04:
that there needs to be regulations in which a requirement is established associated with a hazardous substance.

[00:03:02] Speaker 04:
And if the feds have done that, out goes the Oregon provision, right?

[00:03:08] Speaker 01:
I think that's a fair way to read it, Your Honor.

[00:03:10] Speaker 04:
Okay.

[00:03:10] Speaker 04:
Now, Oregon has, what, 73 in their list.

[00:03:14] Speaker 04:
Yes, ma'am.

[00:03:15] Speaker 04:
And of that, if I understand it correctly, only four specific substances

[00:03:22] Speaker 04:
have been called out by the federal government.

[00:03:24] Speaker 04:
Is that right?

[00:03:25] Speaker 01:
I don't think that's right.

[00:03:27] Speaker 04:
Okay, and that's because?

[00:03:28] Speaker 01:
That's because under 16 CFR 1500.3, which is the same thing, it's just repeated in the CFRs as 1261 Q1A.

[00:03:36] Speaker 04:
For convenience.

[00:03:38] Speaker 04:
For convenience, right?

[00:03:39] Speaker 01:
Well, it's two things, Your Honor.

[00:03:41] Speaker 01:
It's not just for the convenience of the reader.

[00:03:43] Speaker 01:
Let me direct your attention, if I may, to 16 CFR 1500.3, which contains that for convenience language.

[00:03:50] Speaker 01:
Yeah.

[00:03:50] Speaker 01:
Yes.

[00:03:51] Speaker 01:
What it says is the definitions set for in Section 2 of this Act are applicable to this part.

[00:03:56] Speaker 01:
That's the first part.

[00:03:57] Speaker 01:
That gives them the force of law.

[00:04:00] Speaker 01:
So those definitions, including the definition of a banned hazardous substance, have the force of law by that.

[00:04:05] Speaker 05:
That's true of every definition section.

[00:04:08] Speaker 05:
It's a little odd that it's repeated for convenience, but it seems to me that you're treating that as an act of the commission that specifically regulates those, just because they repeated the definitions.

[00:04:19] Speaker 05:
And I want to make sure I understand that, that that's how you incorporate those.

[00:04:22] Speaker 01:
I do consider it an act of the Commission only in the sense that the Commission makes rules following what Congress tells it to do, as you must do in the CFR.

[00:04:31] Speaker 05:
This strikes me as a really heavy lift for you, and I think this is a critical part of your argument, so I just wanted to give you a heads up that I'm color me skeptical on that point.

[00:04:38] Speaker 04:
So the bottom line for your argument is there's a big definition.

[00:04:44] Speaker 04:
The big definition is in the statute and the regs and therefore everything that qualifies essentially as this banned hazardous substance has by regulation made its way onto the federal

[00:05:01] Speaker 01:
I think Your Honor, I put that a little bit differently and to say that it's close.

[00:05:05] Speaker 01:
It's to say that if it's a band hazardous substance, it falls under this definition.

[00:05:09] Speaker 01:
And that's only if it falls under the different other definitions in the CFR for whether a substance is toxic or an irritant or an acute toxin.

[00:05:17] Speaker 01:
If those qualify, then it's a band hazardous substance.

[00:05:21] Speaker 01:
And I would direct you to address

[00:05:23] Speaker 01:
the, I guess, hesitancy on Judge McEwen's part is in this court's decision in the Extra Art Consumer Products Commission case.

[00:05:36] Speaker 01:
What that court pointed to, forgiving the CPSC its ability to act, and that was a case involving something called rainbow foam paint.

[00:05:45] Speaker 01:
Now rainbow foam paint isn't specifically called out as one of the chemicals in the FHSA.

[00:05:50] Speaker 01:
But under that provision alone, and under that definition alone, in 1500 CFR, 1500.3, 16 CFR, excuse me, that has the force of law.

[00:06:02] Speaker 04:
So that is how... That kind of raises the question that there is a difference between ability to enforce versus preemption.

[00:06:09] Speaker 04:
Do you agree with that general legal principle?

[00:06:12] Speaker 04:
I do, Your Honor.

[00:06:13] Speaker 04:
Those are valid distinctions.

[00:06:15] Speaker 04:
Okay.

[00:06:15] Speaker 04:
So, I mean, it seems to me that the...

[00:06:20] Speaker 04:
Express preemption is Congress is telling us, well, they want certain things to make sure we reserve those to the federal government.

[00:06:31] Speaker 04:
So that's why we have this express preemption.

[00:06:35] Speaker 04:
And if you have this express preemption, they're by implication saying, but we're not preempting stuff that falls outside, correct?

[00:06:43] Speaker 01:
That's true, Your Honor, yes.

[00:06:46] Speaker 04:
But why do you even need this

[00:06:52] Speaker 04:
express preemption if everything that is a band-hazardous substance is preempted.

[00:07:00] Speaker 04:
I mean, I'm having trouble kind of matching the statutes up and let me say that where I'm stumbling a little, and I only came to this this morning, because I've, you've probably read this a hundred times more than we have, but we have read it a lot.

[00:07:13] Speaker 01:
Your Honor, I'm not going to tell you you're stumbling, but let me see if I can walk you through that.

[00:07:17] Speaker 04:
But there is, one of the things I look at here

[00:07:22] Speaker 04:
is I'm trying to really look at what does the express preemption provision mean.

[00:07:27] Speaker 04:
And it talks about a hazardous substance, actually having a regulation about a hazardous substance.

[00:07:35] Speaker 04:
And to me the intent of that is if the commission has a list of hazardous substances and it goes through them usually one by one or in categories when it does these

[00:07:51] Speaker 04:
regulatory provisions.

[00:07:53] Speaker 04:
Those, of course, would be preempted, a hazardous substance.

[00:07:57] Speaker 04:
So we have to give some meaning to that phrase associated with a hazardous substance.

[00:08:04] Speaker 04:
Could you give it some meaning?

[00:08:05] Speaker 01:
I can.

[00:08:05] Speaker 01:
Let me see if I can walk you through your concerns.

[00:08:07] Speaker 01:
Sure.

[00:08:08] Speaker 01:
Is that there's two parts to 1261 Q1A and B. The broad definition in Q1A applies only to children's products.

[00:08:16] Speaker 01:
And I think Congress was being especially protective with children's products as opposed to other kinds of products and risks.

[00:08:22] Speaker 01:
That one is self-enacting and operates on its own as a ban.

[00:08:27] Speaker 01:
So I think what I want to address here is that there's two steps.

[00:08:34] Speaker 01:
I think I misspoke earlier.

[00:08:36] Speaker 01:
Judge McEwen, there are two steps.

[00:08:39] Speaker 01:
Number one is the step for the ban.

[00:08:40] Speaker 01:
And under Q1A, there is a ban on any children's product that is a banned hazardous substance if it presents a risk of toxic exposure to a children on its own.

[00:08:52] Speaker 01:
And that's what the ExArt case says.

[00:08:54] Speaker 01:
It's also, if I may point your attention.

[00:08:57] Speaker 01:
Take your attention to the phthalates guide published by the CPSC and that's at 2ER 252.

[00:09:05] Speaker 01:
In that what the CPSC says is manufacturers are still responsible for ensuring that children's products do not contain hazardous substances as defined in the FHSA.

[00:09:15] Speaker 01:
Right.

[00:09:16] Speaker 01:
Children's products that contain a hazardous substance are automatically banned.

[00:09:20] Speaker 01:
That's step one, I think, for what your question was, Your Honor, is that's how that works.

[00:09:25] Speaker 01:
So on its own, 1500.3 and 2Q1A have the force of law without any other enacting regulations.

[00:09:33] Speaker 01:
They could, and there are examples.

[00:09:35] Speaker 05:
Well, if you import the definition section, you're importing the definition section.

[00:09:38] Speaker 01:
I'm importing the definition, yes.

[00:09:40] Speaker 01:
Yes.

[00:09:41] Speaker 01:
Because that section says it's applicable to and repeated here for the convenience of the leader.

[00:09:45] Speaker 05:
Okay, so that's the part I was skeptical about.

[00:09:49] Speaker 04:
So A, any toy that has any banned hazardous substance.

[00:09:56] Speaker 01:
It's called itself a banned hazardous substance is automatically banned.

[00:10:00] Speaker 01:
And that is why 1500.3 and 2Q.1 have a force of law independent of subsequent enacting regulations.

[00:10:08] Speaker 01:
What the district court held is that you had to name them substance by substance, chemical by chemical.

[00:10:13] Speaker 01:
And that's just not how it works.

[00:10:14] Speaker 05:
Well, I'm not so sure he's wrong about that.

[00:10:16] Speaker 05:
That is, when I look at the prevention provision, that's the way this reads to me.

[00:10:20] Speaker 05:
Right.

[00:10:21] Speaker 05:
So can you go to the preemption provision?

[00:10:22] Speaker 05:
I think that's where Judge McEwen started a minute ago.

[00:10:25] Speaker 05:
The commission has... Oh, yes?

[00:10:26] Speaker 01:
Let me just answer that question real quick.

[00:10:28] Speaker 01:
Because when you say not that sure how it works, that is, I think the answer to that... What question are you answering?

[00:10:34] Speaker 01:
The very end there, you said you're not sure that's how it works.

[00:10:37] Speaker 05:
And let me just point out... Well, that was somewhat rhetorical.

[00:10:39] Speaker 05:
I don't think that's how it works.

[00:10:40] Speaker 05:
But if you think there's a question in there, go right ahead.

[00:10:43] Speaker 01:
Let me address that and say, even though the FHSA contains no provisions about phthalates, the CPSC says the FHSA does regulate phthalates under that provision.

[00:10:54] Speaker 01:
So that's how it works.

[00:10:56] Speaker 01:
Anything that is toxic, it's really more of a, if I could summarize it, a functional approach to finding things that are toxic.

[00:11:04] Speaker 01:
The federal government says they're banned and an item is toxic if it produces a risk of harm to children in some way.

[00:11:12] Speaker 01:
That is different than the sort of the categorical approach of Oregon, which says it's chemical by chemical, and if there's even a de minimis amount, it's banned.

[00:11:20] Speaker 01:
That's a different, non-identical approach.

[00:11:23] Speaker 01:
Now I'll go, and I apologize, just question, let me- No, no, wait, wait, wait.

[00:11:27] Speaker 04:
If it's an absolute ban here- Yes.

[00:11:36] Speaker 04:
Oregon can't do anything.

[00:11:37] Speaker 04:
Oregon can't do anything that relates to toys.

[00:11:39] Speaker 04:
We're just talking toys now, right?

[00:11:42] Speaker 01:
That's correct, Your Honor.

[00:11:44] Speaker 04:
Oregon can't do anything related to toys under your argument, I just want to understand.

[00:11:48] Speaker 01:
No, I don't think Oregon can't do anything related to toys.

[00:11:51] Speaker 01:
Oregon could require and does require notice of things that are already being done under federal law, which is... That's the CPSA?

[00:12:00] Speaker 01:
Yes.

[00:12:01] Speaker 04:
And that wouldn't be preempted?

[00:12:04] Speaker 01:
That would not be preempted.

[00:12:06] Speaker 04:
Let's talk about the

[00:12:08] Speaker 04:
FHSA.

[00:12:11] Speaker 04:
If Oregon did anything related to toys and hazardous substances, it would be preempted.

[00:12:18] Speaker 01:
It would be preempted to the extent it's not identical and not uniform with the federal approach.

[00:12:23] Speaker 01:
Let me answer, go back to what Judge Kristen asked is, there's really only two things for the FHSA to apply.

[00:12:29] Speaker 01:
Number one, it's regulated under the federal and the state law for the same risk of illness or injury.

[00:12:35] Speaker 01:
That's true

[00:12:36] Speaker 01:
because both are concerned with toxic risk to children in children's products.

[00:12:41] Speaker 01:
Number two, if those two statutes aren't identical, if there's a mismatch between those, then it's preempted.

[00:12:47] Speaker 05:
Here's what my notes say.

[00:12:48] Speaker 05:
Can you tell me why my notes are wrong?

[00:12:50] Speaker 05:
My notes say, because I know you're a specialist and I don't know how many arguments I've heard this week, but a lot.

[00:12:56] Speaker 05:
Okay, and so on this one, I think the Commission has to issue a regulation, right?

[00:13:01] Speaker 05:
And you've got that.

[00:13:01] Speaker 05:
Your position is they did that by importing these definitions.

[00:13:05] Speaker 05:
It may have to be a regulation under or for the enforcement of 1261Q.

[00:13:08] Speaker 05:
Yes.

[00:13:10] Speaker 05:
Right?

[00:13:10] Speaker 05:
Okay.

[00:13:11] Speaker 05:
And it must establish a requirement to protect against the risk of injury or illness associated with a hazardous substance.

[00:13:20] Speaker 05:
Correct.

[00:13:20] Speaker 05:
So how does incorporating the definitions

[00:13:24] Speaker 05:
satisfy the second or third bullet.

[00:13:26] Speaker 01:
Because that definition, as I read to Your Honor, is made applicable to this part.

[00:13:30] Speaker 01:
In other words, those definitions have the force of law in addition to being repeated for the convenience of the reader.

[00:13:36] Speaker 05:
Okay, so that's what tells me that your argument is way back at the top where I said, could you please turn to 1261?

[00:13:41] Speaker 05:
It is the case that your argument pivots on incorporating those definitions.

[00:13:46] Speaker 05:
Yes, it is, Your Honor.

[00:13:47] Speaker 05:
And your position is that by incorporating them, they satisfy all three bullet points, what I think are three requirements for the preemption provision that Judge McEwen was pointing you to.

[00:13:57] Speaker 04:
Yes, Your Honor, that's true.

[00:13:59] Speaker 04:
Just to take it a step further, Oregon lists a series of substances, correct?

[00:14:06] Speaker 04:
Correct.

[00:14:09] Speaker 04:
Are those

[00:14:12] Speaker 04:
banned hazardous substances in your view in the meaning of the federal law?

[00:14:16] Speaker 01:
No, because there's a different approach, Your Honor.

[00:14:19] Speaker 01:
Those substances might be banned hazardous substances if they're present in a children's product in a way that would make them toxic or an irritant.

[00:14:26] Speaker 01:
It's just a different, it's a functional approach.

[00:14:28] Speaker 04:
So you're saying that just because they're present

[00:14:31] Speaker 04:
That makes them non-identical.

[00:14:34] Speaker 04:
If that's the bottom line, being present isn't enough to meet the other criteria in the statute and therefore they're non-identical.

[00:14:42] Speaker 01:
I think that's a good way to say it too, Your Honor.

[00:14:44] Speaker 01:
It's a non-identical approach.

[00:14:46] Speaker 01:
Just the presence of these chemicals or chemicals in a way that actually presents a risk of harm to children, which gets to what you've seen in the briefs is there's a big difference between organ law and federal law about accessible components.

[00:14:57] Speaker 01:
Oregon law says we have to test and know about even inaccessible components and provide notice of those.

[00:15:03] Speaker 01:
Federal law says, since children can't get to those by definition, you don't have to worry about those.

[00:15:08] Speaker 05:
Council, you're just about out of time.

[00:15:09] Speaker 05:
Let me just make... Did I interrupt you?

[00:15:11] Speaker 05:
No, I just had one other question.

[00:15:12] Speaker 04:
Go right ahead, go right ahead.

[00:15:14] Speaker 04:
Given that a lot of this relies on how the federal government does or doesn't, you know, set out various substances, do you think this is something we should ask for

[00:15:28] Speaker 04:
amicus or other briefing on from the federal government?

[00:15:33] Speaker 01:
Leave that to the court, Your Honor.

[00:15:35] Speaker 01:
I certainly think the CPSC would have an interest in this because the argument here directly contravenes the CPSC's own view of 1500.3 that it has no enforcement powers at all.

[00:15:47] Speaker 01:
In other words, that it is a dead letter in federal law that regulates no substances at all because it doesn't name them like Oregon does on a chemical, biochemical product.

[00:15:57] Speaker 01:
That would be, I think, a question of interest to the CPSC and the federal government because it's not how they operate.

[00:16:04] Speaker 01:
It's not what the Ex Art case says.

[00:16:06] Speaker 05:
Judge Ezra, do you have any questions?

[00:16:07] Speaker 02:
No, you've actually asked the exact question I was going to ask.

[00:16:10] Speaker 05:
You are over your time.

[00:16:12] Speaker 05:
So we'll hear from opposing counsel and you can plan that we'll put two minutes on the clock when you come back.

[00:16:16] Speaker 01:
Thank you very much.

[00:16:32] Speaker 03:
I'll try to be helpful with sorting out some of this alphabet soup and the parampshin clip.

[00:16:44] Speaker 03:
I don't think it's all that complicated once we look at the text of the provisions.

[00:16:54] Speaker 04:
It's all in the eye of the beholder, right?

[00:16:59] Speaker 03:
But I do want to start off by pointing out

[00:17:02] Speaker 03:
A practical difficulty of plaintiffs' argument is that they're right that simply by referencing the definitions in the CFRs, Oregon is utterly preempted from regulating these chemicals as to children's products.

[00:17:21] Speaker 03:
Oregon's not preempted from regulating those chemicals for other products, for products that aren't targeted for children.

[00:17:29] Speaker 03:
So the very population

[00:17:32] Speaker 03:
that is at most risk from, say, chewing on a plastic product that's full of toxic chemicals, Oregon would be prevented from regulating because of the incorporation of this definition.

[00:17:45] Speaker 03:
But for other products, Oregon would be free to regulate those.

[00:17:49] Speaker 03:
So tie the state of Oregon's hands to protect the most vulnerable citizens.

[00:17:54] Speaker 03:
And I think that would be a perverse and unintended result of merely incorporating the definition

[00:18:01] Speaker 03:
of the children's toy definition into the regulations for the convenience of the reader.

[00:18:08] Speaker 03:
So I think that's one practical issue.

[00:18:12] Speaker 04:
Well, I would assume the response to that would be that that really lies.

[00:18:19] Speaker 04:
Sure, our organ's preempted, but that doesn't mean that the children aren't protected because they're protected under the federal statute.

[00:18:25] Speaker 03:
That's right.

[00:18:26] Speaker 03:
I'm sure that's what opposing counsel would say.

[00:18:29] Speaker 03:
So I think the heart of the issue here is what does the FHSA preemption clause say?

[00:18:37] Speaker 03:
That's the first question.

[00:18:38] Speaker 03:
And it's quite narrow.

[00:18:40] Speaker 03:
What it says is that regulations that are promulgated under Section 2Q preempt state law that is not

[00:18:51] Speaker 03:
Identical.

[00:18:52] Speaker 03:
So it's when the agency takes specific regulatory action to identify a toxic substance, which it has, but those substances are I think only four.

[00:19:02] Speaker 03:
Out of the 73 chemicals Oregon regulates, only four of them are also regulated under the FHSA, leaving 69 that aren't regulated at all.

[00:19:14] Speaker 05:
That's how Judge Simon saw it, but why don't you ask your question first?

[00:19:18] Speaker 02:
Well, what about under EXTRA?

[00:19:21] Speaker 02:
It's my understanding that both the Ninth and the Second Circuits banned this colored shaving cream under 1261 Q1A.

[00:19:34] Speaker 02:
That's certainly not for children.

[00:19:36] Speaker 02:
One would think.

[00:19:38] Speaker 03:
Well, so, Your Honor, as to that case, I don't think there's any inconsistency with our position about the... Well, but you just... Okay, you go ahead.

[00:19:47] Speaker 03:
In that case, so the colored shaving cream paint product in that case was...

[00:19:54] Speaker 03:
The CPSC determined that was a product, a children's product, and they did ban it.

[00:20:02] Speaker 03:
They took specific enforcement action to seize that particular product and then that was litigated both on the East Coast and the West Coast.

[00:20:14] Speaker 03:
based on that specific enforcement action.

[00:20:17] Speaker 03:
And so our position, Oregon's position, has never been that the definition of toy that contains a hazardous substance is a dead letter, unenforceable.

[00:20:29] Speaker 03:
It's absolutely enforceable when the federal agency takes specific action.

[00:20:36] Speaker 03:
The preemption provision steps in

[00:20:38] Speaker 03:
when the federal agency takes regulatory action and says, okay, we're going to ban this particular substance, and if that's a substance in children's products, we're going to ban particular children's products, specific ones, like specific categories of toys, which the commission has done, then those regulations preempt state law unless the state law is identical.

[00:21:03] Speaker 04:
And then they say, well, we did enact

[00:21:07] Speaker 04:
a regulation, even if it says for convenience, and it just folds the entire definition back.

[00:21:15] Speaker 04:
So therefore, under preemption, they have

[00:21:22] Speaker 04:
by regulation establish this big category.

[00:21:26] Speaker 03:
And that's absolutely plaintiff's argument, Your Honor.

[00:21:29] Speaker 04:
And why is that wrong?

[00:21:32] Speaker 03:
Well, I think it's wrong because it's contrary to how the specific sort of regulations that the Consumer Product Safety Commission enacts when it's targeting a specific substance.

[00:21:44] Speaker 03:
I mean, it's saying, well, we're going to add this definition for the convenience of the reader.

[00:21:52] Speaker 03:
And by the way, we're also banning any and all substances that could appear in children's products in this particular way, such that states can now have no role at all in regulating these things.

[00:22:09] Speaker 03:
chemicals.

[00:22:10] Speaker 03:
It's really the tail wagging the dog in the preemption context.

[00:22:17] Speaker 03:
Here, when you're talking about regulating substances that are harmful to the citizens of Oregon, that's a core police powers, the state protecting the children of Oregon from harmful substances.

[00:22:29] Speaker 03:
Congress was very mindful of that in its regulation of toxic chemicals, which is why it has an express preemption that is narrow.

[00:22:38] Speaker 03:
Plaintiff's argument is that by adding this definition for the convenience of the reader,

[00:22:45] Speaker 03:
the commission intended to remove the ability of organ to regulate these chemicals.

[00:22:51] Speaker 05:
But I think what he has to show is that for the convenience of, incorporating for the convenience of equates to adopting regulation to establish a requirement to protect against the risk of injury or illness associated with a hazardous substance.

[00:23:05] Speaker 03:
And that's, and as he discussed in the brief, I mean, what the... That's what I failed to see.

[00:23:09] Speaker 05:
How is incorporating those definitions to how does it satisfy that definition?

[00:23:15] Speaker 03:
I don't think it does because the section talks about a specific standard and as I think the commission's practice has been to identify either specific substances or to identify specific products, children's products that are hazardous.

[00:23:34] Speaker 05:
I think that was Judge McEwen's point when she asked about this definition.

[00:23:37] Speaker 05:
The statute talks about adopting a regulation aimed at a hazardous substance.

[00:23:43] Speaker 04:
Do you have any other examples where Congress has thrown this into our lap with a convenient definition?

[00:23:55] Speaker 04:
I haven't looked yet, but maybe I thought you all might have.

[00:23:58] Speaker 04:
I didn't find one, but maybe it's there.

[00:24:00] Speaker 03:
I don't even know what that means.

[00:24:04] Speaker 03:
of federal agency regulations that kind of include this definition for convenience.

[00:24:08] Speaker 03:
I mean, I primarily practice in the Oregon regulatory world where Oregon agencies do commonly, you know, they restate what's in the statute because, you know, when you're looking at the regulations, it's all there in one place.

[00:24:21] Speaker 04:
But it is a regulation then, right?

[00:24:23] Speaker 04:
They adopted a regulation under the federal regulatory system.

[00:24:29] Speaker 03:
They did, but the process that there are

[00:24:32] Speaker 03:
statutes that give the detailed procedures for when under the FHSA or under the CPSA, when the commission is going to go forward and ban specific products,

[00:24:49] Speaker 03:
It, you know, all the findings that the agency has to make, it's a high burden.

[00:24:57] Speaker 03:
There are public hearings that are, you know, kind of similar, more like adjudicatory proceedings than regulatory proceedings.

[00:25:04] Speaker 03:
And so that process is intended, I think, to make it, it makes it difficult for the agency to ban a substance outright.

[00:25:14] Speaker 04:
What about severability if we took your

[00:25:19] Speaker 04:
argument all the way down the road.

[00:25:21] Speaker 04:
Wouldn't there be three or four of these substances that do appear as a hazardous substance in the federal system, but you also have them in yours?

[00:25:35] Speaker 03:
That's right, Your Honor.

[00:25:35] Speaker 03:
And that's where I think the other layer of complication here, for plaintiffs at least, is the specific regulations they challenge.

[00:25:43] Speaker 03:
They challenge Oregon's notice provision is the first one.

[00:25:46] Speaker 03:
And all we're requiring under the notice provision is that they tell us what chemicals are in their products.

[00:25:51] Speaker 03:
Say, tell us the amounts in a range if you have one of these 73 chemicals in your children's toys.

[00:25:58] Speaker 03:
That's what we're asking for there.

[00:26:00] Speaker 03:
And so I don't think there's a conflict

[00:26:04] Speaker 03:
with that.

[00:26:05] Speaker 03:
So as they set out in the brief, for the four chemicals that are regulated under the APHSA, the type of regulation they provide, it's targeted at different harms.

[00:26:20] Speaker 04:
But that would go to their argument, well, it's not identical, so out the door.

[00:26:25] Speaker 03:
Right.

[00:26:26] Speaker 03:
And that's certainly their position.

[00:26:28] Speaker 04:
But why isn't that right?

[00:26:30] Speaker 03:
Well, we think it's not right, because the notice regulation is, as cases from this court have said, just requiring a regulated entity to say, here's how we're complying with federal law, that's permissible.

[00:26:45] Speaker 03:
So we think it's OK under that strand.

[00:26:48] Speaker 03:
And then I think the more important point is, they don't challenge the statute that requires removal of these chemicals.

[00:26:56] Speaker 03:
They only challenge the exceptions regulation.

[00:27:00] Speaker 03:
And so there's not really a challenge saying that organ lacks the power to say, you know, don't So it's which to me odd Tension in their argument because they're really not saying Oregon lacks the power to Regulate these chemicals.

[00:27:19] Speaker 03:
They're saying this regulation organ has adopted that provides exceptions is preemptive

[00:27:27] Speaker 03:
Trying to square those two things, frankly, is quite difficult for me.

[00:27:33] Speaker 03:
So I think the worst case scenario under the FHSA is that there are four chemicals that if they're right about the identicality standard as opposed to our arguments, then those four chemicals, maybe our preempted organ, couldn't require removal of them.

[00:27:54] Speaker 03:
But I think you can still say, hey, tell us how we're going to find the federal law.

[00:27:56] Speaker 03:
If you have these chemicals in your product, show us that you're at least complying with federal standards.

[00:28:05] Speaker 04:
Preemption provision under the Consumer Product Safety Act, I think, is a little clearer.

[00:28:11] Speaker 03:
I agree, Your Honor.

[00:28:13] Speaker 03:
So there are 16 chemicals that are regulated under the CPSC that also appear on Oregon's list.

[00:28:29] Speaker 03:
This is where we have to talk about the Solerino argument, which was also the answer to your previous question, that under what they brought here as a facial challenge, they haven't brought an as-applied challenge to any of these regulations.

[00:28:43] Speaker 03:
They're set out separately in Oregon law, so they're challenged with a big picture notice, and they have these statutes.

[00:28:48] Speaker 03:
Not the regulation that sets out the 73 chemicals.

[00:28:50] Speaker 03:
So on that piece, I think the easiest answer is that because we can regulate 57 of these chemicals, or we can regulate 69 of these chemicals under the FHSA, then under Salerno, that's the first oral, and we're done.

[00:29:09] Speaker 04:
I guess Salerno may not be the best law on the books, but we're stuck with it, right?

[00:29:17] Speaker 03:
That's right.

[00:29:17] Speaker 03:
That's what this court has, I mean,

[00:29:19] Speaker 03:
That's what this court has said repeatedly.

[00:29:22] Speaker 03:
And so to the extent that they're in their reply brief, plaintiffs say, well, really, we're arguing about these 16 specific chemicals.

[00:29:32] Speaker 03:
That's not how they pled this case.

[00:29:35] Speaker 03:
And when they brought as applied issues after a first round of briefing, Judge Simon said, no, you can't.

[00:29:43] Speaker 03:
They tried in the state's motion to strike arguments in their motion for summary judgment, saying,

[00:29:49] Speaker 03:
There are no as-applied issues here.

[00:29:51] Speaker 03:
They haven't argued that ruling was an error here.

[00:29:54] Speaker 03:
So as to the 16 specific chemicals, there's nothing as-applied here.

[00:29:59] Speaker 03:
We have to look at the notice regulation, the notice that you can use the regulation as you want.

[00:30:12] Speaker 04:
On the notice side, let's go to the CPS.

[00:30:16] Speaker 04:
You have to give notice if one of these chemicals is in your product, right?

[00:30:21] Speaker 04:
That's the gist of it.

[00:30:23] Speaker 04:
Why doesn't that relate to composition and context under the express preemption provision?

[00:30:36] Speaker 03:
Well, I think the notice provision isn't a regulation of

[00:30:40] Speaker 03:
of the composition is just giving information about the contents or the composition and so I think that is not a requirement in other words

[00:30:59] Speaker 03:
I see that I'm running out of time.

[00:31:00] Speaker 03:
I'm happy to answer any final questions the court might have.

[00:31:03] Speaker 02:
Just as an aside, were we to affirm, I mean, I don't know how Oregon is going to implement this because what is and what is not preempted and regulated in some instances given the intricacies of this law is going to be a trick and a half.

[00:31:28] Speaker 03:
have a vigorous administrative process that they can always avail themselves of if plaintiffs so choose.

[00:31:36] Speaker 03:
We ask that you affirm.

[00:31:37] Speaker 05:
Thank you for your argument, counsel.

[00:31:41] Speaker 05:
Counsel, you have two minutes.

[00:31:44] Speaker 01:
Thank you for the extra time, Your Honor.

[00:31:45] Speaker 01:
Sure.

[00:31:46] Speaker 01:
First of all, since it came last, let me address the notice provisions.

[00:31:49] Speaker 01:
The notice provisions don't just require notice of the presence of chemicals.

[00:31:53] Speaker 01:
They also require that the manufacturers give the amount of the chemicals.

[00:31:57] Speaker 01:
And how you do that is by the tests laid out in Oregon law.

[00:32:01] Speaker 01:
That presents two very different non-identical requirements for manufacturers under federal versus state law.

[00:32:10] Speaker 01:
Number one, if you look at the charts I have at 2ER58 and 2ER60, you'll see that Oregon has a certain set of very scientific requirements for how to test for how much of an HPCCH is in a children's toy.

[00:32:24] Speaker 01:
Those are different tests than are found under federal law.

[00:32:28] Speaker 01:
So the labs that are set up to do these tests don't do Oregon's tests.

[00:32:32] Speaker 01:
Do we look at the testing process or do we look at the chemical itself?

[00:32:36] Speaker 01:
You must do both.

[00:32:37] Speaker 01:
In order to provide the amount of an HPCCH, Your Honor, you have to do the testing.

[00:32:42] Speaker 01:
And Oregon says, here's how to test.

[00:32:45] Speaker 02:
I fully understand that.

[00:32:48] Speaker 02:
But what you're suggesting is because a testing process may be different.

[00:32:55] Speaker 02:
Even though the chemical may be the same, it doesn't matter.

[00:32:59] Speaker 02:
The testing process controls.

[00:33:01] Speaker 01:
It does control, and that's why the notice provision is preempted in this circumstance.

[00:33:05] Speaker 01:
In addition, I'll add, not only that there's different tests, Your Honor, but you have to test inaccessible components.

[00:33:13] Speaker 00:
where the federal approach is locked inside a children's product in some way that doesn't prevent a risk of licking or biting all the other things kids do with children's products.

[00:33:26] Speaker 00:
You don't test for that.

[00:33:27] Speaker 00:
So the labs are also not set up for that.

[00:33:28] Speaker 00:
So practically speaking,

[00:33:28] Speaker 01:
Why there's a non-identical, non-uniform approach here is because those labs take every children's product and those are CPSC accredited labs and they give that product a certificate that says you're safe.

[00:33:40] Speaker 01:
Under Oregon law, under different standards, they would say not safe and banned.

[00:33:45] Speaker 02:
So what you're saying, so let's say we have a toy like a toy bus that's completely sealed.

[00:33:52] Speaker 02:
The outside is not toxic, doesn't have a toxic chemical, but the inside, let's say the seats,

[00:33:58] Speaker 02:
that you can view, but you can't get your hands on, you can't get to, is potentially toxic.

[00:34:06] Speaker 02:
What you're saying is, under federal law, that's okay.

[00:34:10] Speaker 02:
Under Oregon law, it's not okay.

[00:34:12] Speaker 01:
Excellent example, and yes, that's exactly what I'm saying.

[00:34:15] Speaker 05:
Council, you're out of time.

[00:34:16] Speaker 05:
In fact, you're over time.

[00:34:17] Speaker 05:
But we appreciate your argument very much, both of you.

[00:34:20] Speaker 05:
Thank you very much.

[00:34:21] Speaker 05:
And thank you both for your advocacy.

[00:34:23] Speaker 05:
We'll take this case under advisement and go on to the next case.