Mercy for Mercury Labels

A Vermont law mandating special labels and handling instructions for some mercury-containing products and packaging neither unlawfully interferes with interstate commerce nor violates any First Amendment rights, according to a federal appeals court. [Nat'l Elec. Mfrs. Ass'n v. Sorrell, No. 99-9450, 2d Circ., Nov. 6, 2001]

In 1998, Vermont lawmakers enacted a measure requiring manufacturers of certain mercury-containing consumer goods to label their products and packaging to inform buyers that the products contain mercury and that, before disposal, the mercury should be removed or diverted from the waste stream. Among the products regulated are fluorescent light bulbs and batteries.

The National Electrical Manufacturers Association (NEMA) filed suit against state officials in federal district court claiming that the law violated the constitutional rights of NEMA's lamp-manufacturer members. After a lengthy hearing, the district court issued an interim order that blocked the defendants from enforcing the law, finding that NEMA would likely succeed on its Commerce Clause and First Amendment challenges.

Vermont officials appealed, receiving support from 10 other states that joined in filing a friend-of-the-court brief.

The U.S. Court of Appeals for the Second Circuit overturned the preliminary injunction and sent the case back to the district court where the lawsuit likely will be dismissed.

Contrary to NEMA's contention, the law does not control commerce outside the state's borders. “[L]amp producers both inside and outside Vermont” could modify their production and distribution system to sort lamps bound for Vermont, could hike prices in Vermont or could withdraw from the Vermont market altogether, the court said. “[A] decision to abandon the state's market rests entirely with the … manufacturers,” the opinion continued, citing economic factors not controlled by the state. Moreover, the court noted, “[t]he risk that the labeling requirement would erode manufacturers' profits and thus encourage them to abandon the state is an [issue] for the Vermont legislature, not the federal courts.”

The appeals court also brushed aside NEMA's claim that the law burdens interstate commerce by exposing its members to the possibility of multiple, inconsistent labeling requirements imposed by other states. “It is not enough to point to a risk of conflicting regulatory regimes in multiple states; there must be an actual conflict,” the opinion said. Indeed, NEMA conceded that no other state currently regulates mercury-containing bulbs. Besides, state officials produced evidence that programs under consideration in other states were consistent with the Vermont law.

Finally, the court rejected the claim that the law infringes on NEMA members' First Amendment rights. Requiring businesses to disclose “purely factual and uncontroversial” commercial information doesn't ordinarily offend First Amendment interests if the means chosen to achieve to the state's purpose are reasonably related to the objective, the court said. “By encouraging … changes in consumer behavior, the labeling requirement is rationally related to state's goal of reducing mercury contamination,” the opinion concluded.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail:

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.