American Apparel & Footwear Association, Inc. v. Dave Baden

BACKGROUND

In 2015, the Oregon Legislature enacted the Toxic-Free Kids Act. Or. Rev. Stat. §§ 431A.250–431A.280. The TFKA directs the Oregon Health Authority (“OHA”), a state agency, to establish and maintain a list of high priority chemicals of concern for children’s health (“HPCCCH”) and to issue regulations implementing the law. As of January 1, 2022, OHA’s list contained 73 chemicals designated as HPCCCH. Or. Admin. R. 333-016-2020.

AM. APPAREL & FOOTWEAR ASS’N, INC. V. BADEN

Appellants argue that Oregon’s law should be enjoined because it subjects these 73 chemicals to requirements preempted by federal law. Specifically, they challenge Oregon Revised Statutes § 431A.258 (the “Notice Statute”), Oregon Administrative Rule 333-016-2060 (the “Notice Regulation”), and Oregon Administrative Rule 333-016- 3015 (the “Exemption Regulation”), as unlawful because they impose requirements that are not identical to the federal framework. The Notice Statute requires manufacturers of children’s products, or the manufacturers’ trade associations, to provide biennial notices when a children’s product that is sold or offered for sale in Oregon contains a chemical listed as a…