Authored by Dean Barnhard and J.T. Larson The Ninth Circuit recently reminded practitioners that they should keep preemption — both federal and state — in mind as a defense. On Nov. 18, the court held that federal and state law preempted local regulations that impeded the use of pesticides and the development and field testing of genetically modified organism (GMO) crops in three Hawai`i counties. The preemption victory spanned multiple cases in separate appeals and although the facts differed in each case, the Ninth Circuit concluded that the local restrictions were preempted in different ways by applying different federal and state preemption principles. Here is a rundown of the cases involved. GMOs The Ninth Circuit addressed a Maui County ordinance that attempted to ban the growing of genetically modified crops in Alika Atay et al. v. County of Maui et al. The court found that the express preemption provision of the U.S. Plant Protection Act (PPA) preempted the ordinance and precluded localities from regulating plants already regulated by the PPA. The PPA, however, only applies to these plants while they are in the “field trial” phase. Once the crops pass the field trial stage, they are deregulated by the federal government and allowed to be commercialized. So once crops moved beyond the field trial stage they would be beyond the reach of the PPA’s express preemption clause. With respect to these crops, however, the Ninth Circuit further held that state law preempted the county’s regulations because Hawai`i’s comprehensive state statutory scheme regulating potentially harmful plants left no room for additional local ordinances. The Ninth Circuit also rejected a Hawai`i County GMO ordinance for the same reasons in Hawai'i Papaya Industry Assn. et al v. County of Hawaii. Pesticides In Syngenta Seeds, Inc. v. County of Kauai, the Ninth Circuit addressed Kaua`i Ordinance 960, which placed notification and buffer zone requirements on commercial growers using restricted use pesticides. The ordinance also contained other regulations, such as a requirement that commercial growers make public annual reports and provided for substantial civil and criminal fines. The Ninth Circuit found that Hawai`i’s state-wide pesticide laws evidenced legislative intent to preempt local regulation of pesticides, and thus held that Ordinance 960 likewise was preempted. The Takeaway? When dealing with products subject to complex state and federal regulations that attempt to restrict a product’s use, preemption defenses can carry the day and shield product manufacturers from state and local regulations that burden research and development efforts.