Industry concerned with the expanding role of state regulation of products and the potential Balkanization of global commerce should pay attention to the battle lines being drawn by the 9th Circuit. At issue is whether states may continue to be “laboratories of democracy” in regulating the composition and ingredient choice in products or whether their activities will be curtailed by the dormant Commerce Clause. Please read our previous blog entries for more information: "Washington State Issues Revised Draft Regulations to Implement the Children's Safe Products Act: Comment Period Open Until June 15, 2011," "2013: Time to Prepare for Compliance with CA’s Safer Consumer Product Regulations, as published in the Environmental Leader, February 27, 2013," "California Releases Proposed Green Chemistry or Safer Consumer Product Regulations," "What Others Are Saying About the Chemical Safety Improvement Act of 2013," and "Bipartisan Compromise Will Strengthen Chemical Safety Laws."
In December, 2011, a federal District Court found the CARB’s low carbon fuel regulations to violate the dormant commerce clause as impermissibly attempting to control conduct beyond the boundaries of California. Rocky Mountain Farmers Union v. Goldstene, 843 F.Supp.2d 1071 (E.D. Cal. 2011). In 2013, a two justice panel on the 9th Circuit reversed that ruling, allowing California to regulate the content of a product sold in California and how it is manufactured outside of California and explaining that the “modern” view of the dormant Commerce Clause is limited to pricing cases. Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1101 (9th Cir. 2013).
But now on January 22, 2014, in response to the denial of a petition for en banc review, six justices of the 9th Circuit have drafted a strongly worded dissent, drawing attention to the potential threat such state regulatory schemes “to Balkanize our national economy”. Rocky Mt. Farmers Union v. Corey, 2014 U.S. App. LEXIS 1149, * 25. (9th Cir., Jan. 22, 2014) The six dissenters dig deep into the history and purpose of the dormant Commerce Clause, its “critical place in our constitutional order,” and tee up this battle for review by the U.S. Supreme Court.