key points concerning state vatican election regulations and those points are that both congressional action and congressional inaction demonstrated and the congress had no intent whatsoever to preempt in the area of state data collection first with regard to congressional inaction in the preemption provisions themselves there's a one to one relationship between the three substan elements of the federal appliance program this testing labeling and efficiency standards on the one hand and on the other hand preemption inspection six to nine step that is also congress established if federal labeling and other consumer disclosure program is section six two nine four and again in the preemption section this time six two nine seven a one b and expressed the referred  back to that and to that to that section on the one hand we have sections six two nine three six two nine four and six two nine five federal testing federal labeling federal efficiency standards in the preemption preemption section we have three express references back to the testing labeling and efficiency standards program congress also stablished there was to be manufacturers of middle of the data to the federal government in section six to nine six but when you look at the preemption section sixty nine seven we find that in references to testing labeling efficiency and efficiency standards there is no reference back to it and to federal data collection this strongly suggests that congress did not have data collection in mind w preempted state regulations in section sixty nine seven and in effect this is this is a case where the preemptive dog did not bark now congress does silence or inaction was especially telling  fifty three years prior to that in a rule making proceeding the federal trade commission in response to a question from the state of new york had said that section six two nine i'd like to turn to congressional action and the specific action that i want to highlight today is congress's encourage went in section six two nine seven f of flexible state building codes that allow builders to trade off the efficiencies of various parts of the building as long as an overall energy goal or budget is is met and california has such a code and has for more than twenty years for example if a builder wants to construct a home with a large picture window to give an expansive view of the san francisco bay  window against greater efficiency somewhere else in the building for example she might specify on the building plans and after efficient furnace an extra sufficient water heater so that those extra efficiencies can be traded off against the inefficiency of the window now where is she going to find out about these products she's going to go to the energy commission's appliance database which contains information on the names the model numbers sizes and the efficiencies of every single furnace and water heater that's available in the state of california similarly when she takes her plans to the building department to get a permit the building official is also going to be able to refer to the database to confirm that the efficiencies specified on the plans are the actual efficiencies of the appliances we submitted declarations in the trial court that show that the existence of the commission's database is vital to the success of the flexible building code exact kind of code the congress encouraged in section sixty nine seven f we also submitted declarations from representatives of utility instant state energy offices from from across the country but the database is also final for a host of other efficiency programs which the method of just doesn't make sense to believe that on the one hand congress was encouraging energy efficiency and on the other hand intended to deprive states of the authority to gather the information needed to make those programs work was it's legislation is that the states aren't are created from acquiring manufacturers to tell even the name of the person manufacturing the product with the model number of the product we can't even get that information we suggest there's certainly no clear and manifest congressional intent to carry the words of sixty nine seventy that far that's for these reasons that i've discussed today after everything else that we went over in our breeze that the energy commission and the in the king who again represent state utility and energy offices from across the country information disclosure program a federally covered product that is fully compliant with federal requirements to be offered to consumers everywhere in the united states except california and last and indicated that the concern of congress went certainly beyond labeling and certainly went beyond standards the c e c takes the position that the term disclosure of information does not mean disclosure of information but rather it means quote disclosure of information at point of sale or use runners arose as a rose and argue a disclosure of information as disclosure of information and matter what form it takes the court carefully reviewed of the circumstances and indicated that they went far beyond disclosures on labels and included information  for information required under section sixty to ninety four but this definition in the exception does not qualify the general  passed but that's not the case when the it was a a preemption provision against disclosure and the conference report stated that preemption was provided to get state or local regulations that require disclosure for any coverage product of information with respect to energy consumption other than the information required to be disclosed in accordance with this part or superseded again disclosure is  c also says that preemption is weak because of the fact that the waiver provision only applies to standards but when you take a look at the waiver provision it's actually quite broad  that waivers are provided for for not only standards but other requirements with respect to energy efficiency or energy use a friendly cover the quietest of anything we think that proves the strength of it's there are trade secret aspects for example with respect to the guts of a central air conditioning for example they want to know for example if you have a motor with in the central air conditioning is the premium or non premium i don't therefore you would have to actually get into the the guts of of the product itself not simply the specifications as to potential yes but there are they have admitted that there are there are one hundred and thirty one different items that they would require in table q are simply not part of me that are not part of the federal federal your honor so this goes actually not only to leak items of information but we're dealing also with the procedures we can't market our product in california until week until they get all this information federal regulations they want all the market to be done by the two thousand one of the regulations which is totally out of date and these kinds of things would be multiplied with every single state requiring us to jump through a variety of different hoops and do new things that they want every single state every single local jurisdiction could or could potentially do this this will be a nightmare goes for spicy gets the national market that was a central ten t of the of the of the statute market porting to the federal requirements and there would be specific narrow areas of state interest for example there's a specific preservation of provision in california is ok so they knew how to grandfather and they did it very very narrowly and they certainly did not do that with respect to with respect to the situation you know this information is now even available on the federal trade commission's website survey of the district court found that information is available from a number of different sources trade associations manufacturers sattar if you go into the go into the f t c web site you can plot these a variety of different pieces of information but of the fact that manufacturers nay have some information that the state wants to get it simply because it happens like it's this database i can't compete along with other databases the manufacturers databases the trade association database the f t c why does it have to hold our products hostage and not allow them to be marketed in california and soul of the state gets that gets its hands on we don't believe that that is that's reasonable and we believe that that will simply open the floodgates to  the regulations certainly do require something that is other than provided for another thing of the federal requirements federal requirements simply do not have a a licensing requirement it is a procedural that is nowhere provided for in the in the federal rules under the statute or the regulations and as a result of that we believe that the distinction of the other side attempts to draw is is u to say we are going to reject what is clear in the f t c and you know we regulations and we're going to adopt a remark that was really quite obscure that was not well thought out requirements are marking prohibition and preemption applies court at any time and is not dependent on the existence of a department of energy regulations this to quote properly indicated that there was intended for uniformity the but the fact that there is a comprehensive energy policy says nothing about the scope of preemption of state regulations the congress intended in fact when you look at the federal yes your honor but i want to make two two points here first is that when you when you look at the structure of the six two nine four which is the federal labeling statute and despite what counsel said when you look at the f c c regulations specially the scope section sixteen c f r three or five point one it's clear that it's directed only towards  els information other information that is provided at the point of sale that that's what the that's what the regulations say at the point of sale or shipped with the product it's simply does not extend  data collection and in addition the philip morris versus hartford protest which involved preemption of state restrictions on tobacco advertising  informed consumers i think that the legislative history is and not only did congress use the expressly use the words testing labeling and efficiency standards the types of burdens to congress talks about the legislative history are the greatest potential burdens to manufacturers of design changes modifications in production or in marketing and state dat of statute out of the context of legislative history and out of the context of the f t c opinion even just looking at the words on their face i think it's reasonable to say that there is a clear and manifest congressional intent to preempt states from getting information about the products that are sold in the state member of the trial court said the state of california does not have the regulatory authority we don't think that congress intended to mean other than nothing we think well what why do you think then well for for several reasons first because the legislative history indicates that congress was concerned about inconsistent state regulations state regulations that were inconsistent with what's going on at the federal level or different states having having different when the point is quite inconsistent with the states as if the federal people want nothing and you say well you've got to do ohio and hawkins you know which congress had set up a regulatory program as is done here with with with labeling but the agency had regulated only in certain why would that be a federal program that would be inconsistent with yours that would depend on well first of all our i'm not sure of if in creating this national database which believe me we would very much like to of of information as we believe congress intent of the term we also believe that in and as we pointed out we're w e have free pegs on which will hang our hat what we're asking for is not disclosure of information at all in about half the cases of the data we're not asking for a major of energy consumption and where we are asking for a measure of energy consumption to be submitted in and out of all that information is provided through the federal test method since the federal agencies require the manufacturers to keep that information and to provide it to them  on our request we believe that it's certainly not other than for us to get that information so if the f t c is database would be presumably limited to items that are produced during the federal test methods so if manufacturers  c we would not be other than for them to send it to us in the woods other than means information the statute says in sixty nine seventy one b other than information required under section six to ninety four it doesn't say other then means to send it to a different address i want to get back to what counsel was was saying about congress this alleged did intend to create a national market in which federally covered products can be sold anywhere without any state restrictions but what that does is that is that reads section in all the limitations in section sixty to sixty to ninety seven a one clearly out of existence it says what it doesn't matter if the state is or is not calling for disclosure of information it doesn't matter if the state is or is not confirmations of any energy consumption it doesn't matter whether or not the state is doing something other than what's being done on the end of the federal program his argument is that the states can literally do nothing and that's inconsistent with the expressed words of the statute it's inconsistent with the preservation of statutory and common law remedies in section sixty three or five sin course again i point out that manufacturers have been submitting information to the energy commission since since one nine hundred seventy six with no indication of any significant burden as your declarations indicated we've  california regulations that actually didn't even exist at all section sixty two sixty to ninety seven half the building standards provision we are not saying that our client's data collection and marking regulations are contained in a state building  types of information including what congress counsel is apparently concerned about congress also suggest so that we can get the information elsewhere well first of all that's that's not really correct and even if it were correct that that's not the issue congress didn't say well will will preempt state data collection regulations if the state if it's easy for the states to get it simply didn't preempt all this is a question of law not a question of how easy is it for us to get the information but i would like to point out that federal databases are limited and trade association databases are also quite limited they don't they don't cover all appliances they don't cover all models and they don't cover all manufacturers again this is something that it's dealt with in our in our declaration it's i'd like to sum up by by saying that we believe that the the the expressed words of the statute that the structure of the statute that i talked about before the existence of the procurement regulation and building standards with that will proceed to the last case on the oral argument