PestWorld - January/February 2018 - 19

P

PREEMPTION IS A LEGAL CONCEPT THAT IS

important to every member of the pest control
industry. In broad terms, preemption refers to
one type of law supplanting or barring another
type of law. There are two general categories
of preemption: (1) federal preemption of state
and local law, and (2) state preemption of local
law. This article summarizes preemption basics
that everyone involved in the pest management business should know.

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FEDERAL PREEMPTION
The U.S. Constitution allocates powers
between the federal government and the
50 states. The Supremacy Clause, which is
part of Article VI of the Constitution, declares
that the "Constitution, and the Laws of the
United States... shall be the supreme Law of the
Land... any Thing in the Constitution of Laws
of any State to the Contrary notwithstanding."
This means that when a state law conflicts with
a federal law, the federal law reigns supreme
and preempts the state law.
Over the course of many years, the U.S.
Supreme Court has established and applied
several key principles that implement the
Supremacy Clause and federal preemption of
state law in a wide variety of circumstances.
Most importantly, the Court repeatedly has
explained that state law (including local law)
can be "expressly" or "impliedly" preempted
by federal law:
Express preemption occurs where a federal statute explicitly preempts state law. The
most relevant example of express preemption

''

for the pest control industry is section 24(b)
of the Federal Insecticide, Fungicide, and
Rodenticide Act ("FIFRA"): "[A] State shall
not impose or continue in effect any requirements for [pesticide] labeling or packaging in
addition to or different from those required
under [the Act]." This express preemption
provision, which is entitled "Uniformity,"
reflects Congress' intent to establish a system of nationally uniform labeling for each
pesticide product granted a FIFRA registration by the U.S. Environmental Protection
Agency (EPA). In Bates v. Dow AgroSciences,
LLC, 544 U.S. 431, 452 (2005), the Supreme
Court explained that section 24(b), which was
added to FIFRA in 1972, "pre-empts competing state labeling standards-imagine 50
different labeling regimes prescribing the
color, font size, and wording of warnings."
Nevertheless, a few state agencies, such as the
California Department of Pesticide Regulation,
are notorious for attempting to skirt FIFRA
preemption and impose their own pesticide
labeling requirements as a condition for state
registration of FIFRA-registered products.
It is important to note that under section
24(a) of FIFRA, "[a] State may regulate the sale
or use of any federally registered pesticide or
device in the State, but only if and to the extent
the regulation does not permit any sale or use
prohibited [under FIFRA]." This means that
each state retains authority to decide for itself
whether to allow a FIFRA-registered pesticide
to be used in the state, and if so, whether
any state-specific use restrictions should be

Under our federalist system, federal
preemption of state regulation-and by extension,
state preemption of local regulation-are needed
to ensure that all levels of government operate
in a smooth and coordinated manner for the
protection and benefit of the public."
PESTWORLD > JA NUARY | FEBRUARY 2018

| 19


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Table of Contents for the Digital Edition of PestWorld - January/February 2018

President’s Message
FARM BILL 101
GEARING UP FOR LEGISLATIVE DAY
PREEMPTION 101
Standards: Safety First
Marketing Corner: Is Your Website Up to Speed?
Membership Programs: Health Insurance for NPMA Members
Ask the Expert
TWO PREREQUISITES TO MANAGING SMALL BUSINESS GROWTH
Index of Advertisers
Calendar of Events
PestWorld - January/February 2018 - Intro
PestWorld - January/February 2018 - cover1
PestWorld - January/February 2018 - cover2
PestWorld - January/February 2018 - 3
PestWorld - January/February 2018 - 4
PestWorld - January/February 2018 - 5
PestWorld - January/February 2018 - 6
PestWorld - January/February 2018 - 7
PestWorld - January/February 2018 - 8
PestWorld - January/February 2018 - President’s Message
PestWorld - January/February 2018 - FARM BILL 101
PestWorld - January/February 2018 - 11
PestWorld - January/February 2018 - 12
PestWorld - January/February 2018 - 13
PestWorld - January/February 2018 - GEARING UP FOR LEGISLATIVE DAY
PestWorld - January/February 2018 - 15
PestWorld - January/February 2018 - 16
PestWorld - January/February 2018 - 17
PestWorld - January/February 2018 - PREEMPTION 101
PestWorld - January/February 2018 - 19
PestWorld - January/February 2018 - 20
PestWorld - January/February 2018 - Standards: Safety First
PestWorld - January/February 2018 - Marketing Corner: Is Your Website Up to Speed?
PestWorld - January/February 2018 - 23
PestWorld - January/February 2018 - Membership Programs: Health Insurance for NPMA Members
PestWorld - January/February 2018 - 25
PestWorld - January/February 2018 - Ask the Expert
PestWorld - January/February 2018 - 27
PestWorld - January/February 2018 - TWO PREREQUISITES TO MANAGING SMALL BUSINESS GROWTH
PestWorld - January/February 2018 - 29
PestWorld - January/February 2018 - Calendar of Events
PestWorld - January/February 2018 - cover3
PestWorld - January/February 2018 - cover4
PestWorld - January/February 2018 - divider1
PestWorld - January/February 2018 - divider2
PestWorld - January/February 2018 - outsert1
PestWorld - January/February 2018 - outsert2
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