acts (other than the OSH Act) and that alternate methods of labeling are permitted in special situations. Defendants demonstrate that many state requirements correspond with or complement the federal requirements and that employer compliance with one set of requirements can be used to meet the other set.
Defendants seek to minimize the loss of trade secrets risk which the Right to Know Act creates. There are affidavits which state that using available technology it is almost always possible to ascertain the component substances of a product, and therefore the listing of chemical substances will not disclose anything which a competitor or other interested person could not ascertain in any event. Further, defendants note that of 50,000 chemicals which are commonly used, only 835 are in the category of special health hazard substances. All the rest are entitled to trademark protection under the Right to Know Act. Finally, defendants argue that these 835 substances are capable of causing extraordinary harm to workers and others, and that if there is a conflict between the employer's right to protect his trade secrets and a worker's need to know the identity of the substance to prevent or treat injury or disease, the interest in maintaining trade secrets must give way to the more important health needs.
It is impossible on the present record to measure with any precision the extent of the increased burden imposed by the Right to Know Act, although given the additional requirements of the Act the extra burden must of necessity be considerable. I suspect that not even an extended evidential hearing would enable a court to determine the extent of the risk to trade secrets which would result from implementation of the Right to Know Act. Plaintiffs discussed their trade secrets in only the most general terms. Even when dealing with a claim of a single trade secret, the determination of the validity of the claim is a difficult process at best. Discussion of a threat to all of the asserted trade secrets of all industrial concerns in New Jersey is necessarily imprecise and nebulous. Similarly defendants' assertions that there is little danger to this undifferentiated mass of trade secrets cannot be totally convincing. The most that can be said is that there is a likelihood that the disclosure requirements will involve a substantial risk of the loss of some trade secrets by some of New Jersey's employers.
III. Conclusions of Law
A. Jurisdiction : Plaintiffs in the Fragrance Materials Association Action assert federal jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1337(a) (commerce regulation). Plaintiffs in the Chamber of Commerce Action assert federal jurisdiction under 28 U.S.C. § 1331, 42 U.S.C. § 1983 (deprivation of federal rights under color of state law) and 28 U.S.C. § 2201 (Declaratory Judgment Act). The latter statute, of course, is not an independent basis of jurisdiction and simply provides for a remedy when a federal court already has jurisdiction.
Defendants urge that under the rule set forth in New Jersey State AFL-CIO v. New Jersey, 747 F.2d 891 (3d Cir. 1984) and Exxon Corp. v. Hunt, 683 F.2d 69 (3d Cir. 1982), cert. denied, 459 U.S. 1104, 103 S. Ct. 727, 74 L. Ed. 2d 952 (1983), this court lacks jurisdiction notwithstanding the fact that plaintiffs rely on a federal statute and regulation as the bases of their claims. Plaintiffs' principal claim is that the Right to Know Act has been preempted by the federal Hazard Communication Standard. In Exxon plaintiffs sought a declaratory judgment that the existence of the federal Superfund Act, 42 U.S.C. § 9631, preempted New Jersey's Spill Act, N.J.S.A. 58:10-23.11a, and exempted them from paying the tax imposed by the Spill Act. The Court of Appeals ruled that "a complaint seeking a declaration that federal law preempted state regulations did not raise a federal question" and that "a declaratory judgment complaint does not state a cause of action arising under federal law when the federal issue is in the nature of a defense to a state law claim," 638 F.2d at 73.
In State AFL-CIO plaintiffs sought a declaratory judgment that the Employment Retirement Income Security Act of 1974 (ERISA) preempted four New Jersey statutes regulating "closed panel" dental insurance plans. Affirming the district court's dismissal of the action for lack of subject matter jurisdiction, the Court of Appeals held that the case did not arise under federal law since the declaratory relief was sought "only to stave off action by New Jersey against plan providers which might be taken under the state statute." 747 F.2d at 892.
I do not believe these cases are controlling here. Rather, Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983) governs the question of jurisdiction. The issue in that case was the extent to which ERISA preempted New York's Human Rights Law and Disability Benefits Law. In a footnote the Supreme Court stated:
Here, . . . companies subject to ERISA regulation seek injunctions against enforcement of state laws they claim are pre-empted by ERISA, as well as declarations that those laws are pre-empted. It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights. See Ex Parte Young, 209 U.S. 123, 160-162, 52 L. Ed. 714, 28 S. Ct. 441 (1908). A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 [ 28 U.S.C.S. § 1331] to resolve. . . . (Emphasis added.)
Id. at 500, n. 14.
Plaintiffs here seek injunctive as well as declaratory relief, thus distinguishing the case from Exxon and State AFL-CIO. This may appear to be a distinction without a difference, but at least in this Circuit the Supreme Court's ruling in Shaw gives significance to the distinction.
Further, plaintiffs' trade secret claims allege a deprivation of property without due process of law, a different claim altogether from those advanced in Exxon and State AFL-CIO. Thus I conclude that the instant cases arise under federal law and that jurisdiction lies in this court.
B. Preemption : The principal contention of plaintiffs in both actions is that OSHA's Hazard Communication Standard preempts the Right to Know Act. It must be noted in this regard that when OSHA issued the Standard it limited the Standard's coverage to employers in the manufacturing sector, SIC codes 20 through 39. 29 C.F.R. § 1910.1200(b)(1). It reserved "the right to separately regulate other segments in the future." 48 Fed. Reg. 53,284-87, 53,334. The Right to Know Act covers both the manufacturing and other sectors. In this section of this opinion I am proceeding on the assumption that preemption, if applicable, would apply only to state regulations affecting manufacturing businesses covered by the federal Standard, i.e., employers within SIC codes 20 through 39.
It is hornbook law that under the Supremacy Clause of the Constitution, Art. 6, Cl. 2, when a state statute conflicts with a federal statute which has preempted the subject matter of the legislation, the state statute must give way. Maryland v. Louisiana, 451 U.S. 725, 746-47, 68 L. Ed. 2d 576, 101 S. Ct. 2114 (1981). Preemption may be either express or implied and "is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1977).
In the present case Congress addressed the preemption question in the statute itself, and therefore the question is one of statutory interpretation, not implied preemption. Section 18 of the OSH Act provides:
(a) Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title.