(dissenting):
I agree with the majority that the trial court had jurisdiction in a preenforcement proceeding under Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and that CSMA had standing to seek judicial review under, e. g., Scenic Hudson Preservation Conference v. F.P.C., 354 F.2d 608 (2d Cir. 1965), cert. denied, Consolidated Edison Co. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966) . Although this is not a case involving individual rights, Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965), or personal reputation, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), where abstention might be unseemly, see Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) , there appear here to be no questions of state law that would be dispositive of the case, Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), or, with one possible exception, affect decision of the questions arising under the Federal Constitution. Spector Motor Co. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944). See County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed. 2d 1163 (1959). Nor, in view of the claim of federal preemption, is this a case where abstention might be proper because the local administrative order is based upon predominantly local factors. Alabama Public Service Comm. v. Southern Ry. Co., 341 U.S. 341, 347-349, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). See generally Wright, Federal Courts 196-204 (2d ed. 1970). I believe, however, that the judgment of the trial court should be affirmed because appellants’ claims of preemption are not sufficiently substantial to warrant consideration of the merits.
The products here are in common household use. The standard aerosol can contains a marketable ingredient (whipped cream, Christmas snow, plant polisher, pet shampoos) and a compressed gas propellant by which the product is self-propelled out of the container when a valve is depressed. Both the main ingredient and the gas propellant may be flammable or nonflammable; the *441flammable gas propellant is a hydrocarbon and the nonflammable a fluorocarbon. The ingredient is dispensed when the liquid gas propellant in the container separates from the ingredient, vaporizes, and fills the space above the main ingredient, exerting pressure against the sides of the container and the main ingredient; the pressure forces the main ingredient up a tube to the point of discharge when the valve is pressed. As the main ingredient is dispensed the space filled by the vaporized gas propellant enlarges, until the product in the can is wholly dispensed. Heat may cause the gas to expand to a point of explosion, and according to the affidavit of the Chief Inspector of the Division of Fire Prevention of the City Fire Department, a chemical engineer, this explosive potential, always present when a can is heated whether the propellant is flammable or not, presents a particular hazard where there is a fire. Hydrocarbon gas propellants such as propane, isobutane and butane, or a combination of them, create a blowtorch flame.
The New York City Fire Department has been attempting to regulate pressurized products since 1963. The proposed regulations here involved were finally published on January 31, 1970, with an effective date of July 1, 1970, and some further amendments were made between the publication and effective date of the regulations. In general the regulations require testing and approval prior to sale or storage of pressurized products; specifically set forth tests for classification of the propellants as extremely flammable, flammable or combustible; limit the size of the containers in which the products may be sold or stored; and require cautionary and very precise consumer labeling and storage labeling of cartons, cases or bulk packages of pressurized products. The regulations expressly conform both test methods and labeling requirements to specifications in the Federal Hazardous Substances Act and regulations thereunder, 21 C.F.R. 191. Appeals from the Fire Commissioner’s administration of these regulations may be taken to the City Board of Standards and Appeals pursuant to Sections 666-1.0(3) and 666(6)-1.0 of the New York City Administrative Code (1970), and a number of such appeals are pending but have been stayed while this case has been in process.
Appellant’s contention here that federal law has occupied the field must be examined, as the majority opinion concedes, in the light of Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963):
The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained. See, e. g., Huron Portland Cement Co. v. Detroit [362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960)].
The principle has in no way been weakened by the 5-4 decision in a labor preemption case, some of the language of which is quoted by the majority here. See Amalgamated Ass’n of Street Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).
Only recently this court held in Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir. 1969), that state regulation of an extra auto headlamp was not preempted by the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381-1425, and regulations pursuant thereto, 49 C.F.R. § 371.21. The Act challenged in Tofany, supra, included a preemption clause, 15 U.S.C. § 1392(d). Similarly, in a case involving the labeling of stuffed turkeys, this court found no irreconcilable conflict between the state scheme of regulation under the New York Agriculture and Markets Law § 193 (McKinney Consol. Laws c. 69 1965), and the federal scheme of regulation under the Poultry Products Inspection Act, 21 U.S.C. § 457. Swift & Co. v. Wickham, 364 F.2d 241 (2d Cir. *4421966), cert. denied, 385 U.S. 1036, 87 S.Ct. 776, 17 L.Ed.2d 683 (1967).
Bearing in mind that “where the state’s police power is involved, preemption will not be presumed,” Chrysler Corp. v. Rhodes, 416 F.2d 319, 324 n. 8 (1st Cir. 1969), close examination of the federal statutes and regulations convinces me that there is here no viable claim of irreconcilable conflict with the otherwise eoncededly valid New York City Fire Department pressurized products regulations.
Certain pressurized products obviously fall within the definition of a “hazardous substance” in 15 U.S.C. § 1261(f), and accordingly the provisions of the federal statute on testing and labeling apply to them,1 as do the regulations adopted by the Food and Drug Administration.2 But I fail to see any conflict whatsoever with the City Fire Department regulations which, as previously stated, provide that “cautionary labeling of the individual consumer package and the cartons, cases or similar bulk package” of household products within the purview of the Federal Hazardous Substances Act “shall be in accordance with the test methods and labeling requirements as specified under the Federal Hazardous Substances Act . . . and regulations adopted pursuant to that act . . . .” Sec. 5(A) (3). The majority visualizes some conflict despite this provision because Sec. 5(B) of the New York City Fire Department regulations require identification labeling on both the containers themselves and bulk packages of containers — identification of the name and address of the manufacturer, agent or distributor listed or authorized in the Fire Department Certificate of Approval or Permit to Manufacture and of the Approval or Permit number. But this very limited identification labeling is additive only. What is the conflict with the cautionary labeling required by the Federal Hazardous Substances Act? The Fire Department labeling simply assists in the enforcement of other city regulations relating to limitation of capacities 3 and storage,4 which are undeniably non-preempted exercises of state police power.
Additionally, as in Chrysler Corp. v. Tofany, supra, there is here an express but limited preemption provision in the Federal Hazardous Substances Act, a provision which was apparently suggested to Congress by appellant here5 and reads as follows:
It is hereby expressly declared that it is the intent of the Congress to *443supersede any and all laws of the States and political subdivisions thereof insofar as they may now or hereafter provide for the precautionary labeling of any substance or article intended or suitable for household use (except for those substances defined in sections 2(f) (2) and (3) of this Act) which differs from the requirements or exemptions of this Act or the regulations or interpretations promulgated pursuant thereto. Any law, regulation, or ordinance purporting to establish such a labeling requirement shall be null and void. Federal Hazardous Substances Act, as amended (Pub.L. 91-113, § 4(b) (1), 83 Stat. 190 (1969), 15 U.S.C.A. § 1261, note (b) (emphasis supplied).6
It is the states’ and cities’ “own special forms of warnings” which the Federal Hazardous Substances Act “limited preemption amendment” is directed against, H.Rep. 2166, 89th Cong., 2d Sess. (1966), not other forms of complementary enforcement. It is cautionary labeling of substances which the Federal Hazardous Substances Act prohibits, not identification labeling.
The majority opinion says that “precautionary labeling” in the preemption provision means “all labeling.” I believe that Congress has sufficient wisdom to say “all labeling” if it means “all labeling.” When it chooses to say “precautionary labeling,” I believe it means labeling pertaining to cautions or warnings. Congress did not say that local or state bodies cannot require identification of products the sale of which they could prohibit.
The majority raises the hypothetical and to me entirely inconsequential danger of a “proliferation of local requirements with respect to identification labeling.” When and if such a proliferation occurs it seems to me that may be a matter for Congressional action. *444For the federal courts to anticipate such an event and change by a wave of the judicial wand the prohibition against “precautionary labeling” into one against “all labeling” strikes me purely and simply as an exercise of the legislative function.
Beyond this, here the federal enforcement agency, H.E.W., took the view, in a letter to the New York City Fire Department dated February 20, 1968 (as did the federal enforcing agency in Chrysler Corp. v. Tofany, supra), that the respective federal statutes and regulations did not preclude the challenged local regulations,7 a view swept aside in a footnote by the majority opinion as apparently lacking in “logic.” Appellant ingeniously argued before us that, because this court narrowly construed the preemption provision involved in the Chrysler case, “chaos” accompanied enforcement of the state regulations and brought about a reversal of the Department of Transportation’s position taken before this court to one favoring preemption.8 But the Department of Health, Education and Welfare has not changed its position here. I do not envision any such “chaos” of enforcement, if indeed that were what precipitated the Department of Transportation’s change of viewpoint after Chrysler. I take it that by silence the majority foresees no such chaos either; it simply rejects the H.E.W. view as not founded on “logic.” I should suppose, however, that an administrative interpretation of the words “precautionary labeling” to mean “precautionary labeling” and not “all labeling” was at least as logical a reading of the statute as any other.
It is argued that the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA” or the “Insecticide Act”)9 and the regulations originally issued thereunder by the Food and Drug Administration but now administered by the Environmental Protection Agency,10 preclude New York City Fire Department regulation of insecticides, plant regulators and weed killers sold in pressurized containers. It is claimed that since the Environmental Protection Agency must review and register pesticides under the Insecticide Act before they can move in interstate commerce, New York City cannot ban the sale of any such registered product. The Insecticide Act regulates “economic poisons” such as DDT,11 however, whether or not those poisons are sold as pressurized *445products; hence that Act in no way conflicts with state or local regulation of pressurized products.
The majority opinion relies on language in the FIFRA regulations, however, which purports to regulate the labeling of “pressurized household insecticides” which do not have “extreme flammability or explosive hazards.” See 7 C.F.R § 2762.113(f) (3), formerly 7 C.F.R § 362.113(f) (3), and § 2762.121 (g) (3). Even if the majority were correct, however, this would not justify an injunction against Fire Department regulation of the myriad of products other than pressurized insecticides. Moreover, I fail to see any conflict between these FIFRA regulations and the Fire Department regulations. The majority finds a conflict because two insecticides referred to in an affidavit submitted by appellees would apparently be required under the City regulations to bear a warning of combustibility while they would require no label of any sort under FIFRA regulations. The majority anticipates the counter argument that there is no irreconcilable conflict between the regulatory schemes when in two or three isolated borderline cases the City requires a label where the FIFRA regulations require none. Additionally, however, there is nothing in the record to indicate that the City cautionary label in these instances would not be acceptable to the federal authorities. Moreover, the FIFRA regulations do not, for example, purport to tell us what kind of testing will be required to determine “combustibility” or “flammability” as opposed to extreme flammability or explosiveness. An irreconcilable conflict is thus presumed where none may well exist. This is the very kind of question which, it seems to me, is better left to case by case examination rather than determination in a sweeping federal court injunction proceeding. As the Supreme Court said in Rice v. Chicago Board of Trade, 331 U.S. 247, 255-256, 67 S.Ct. 1160, 1165, 91 L.Ed. 1468 (1947), a case involving, to be sure, state regulations not finally effective:
Any claim of supersedure can be preserved in the state proceedings. And the question of supersedure can be determined in light of the impact of a specific order of the state agency on the Federal Act or the regulations of the Secretary thereunder. Only if that procedure is followed can there be preserved intact the whole state domain which in actuality functions harmoniously with the federal system. For even action which seems pregnant with possibilities of conflict may, as consummated, be wholly barren of it.
. See 15 U.S.C. § 1261(1), (p).
. See 21 C.F.R. §§ 191.110, 191.15, 191.16.
. Limitation of Capacities
No pressurized containers shall exceed twenty-four (24) fluid ounces nominal capacity for Extremely Flammable pressurized products. For Flammable or Combustible products containers shall not exceed thirty two (32) fluid ounces nominal capacity.
Pressurized ether products shall only be packaged in metal containers not exceeding eight (8) fluid ounces in nominal capacity,.
Fire Department Regulations,
Sec. 4, as amended.
. Storage
A. Extremely Flammable, Flammable or Combustible pressurized products exceeding a total capacity of fifty (50) gallons by volume shall be stored in either a sprinklered area, or in an area having natural ventilation or which is ventilated by an open duct terminating in the outer air. Duct shall have a cross-section of at least eight (8) inches.
B. Extremely Flammable, Flammable or Combustible pressurized products exceeding two hundred (200) gallons total capacity by volume, shall be stored only in a building equipped with an approved automatic sprinkler system or in a fireproof storage room in a fireproof building, or in a fire-resistive storage room in a non-fireproof building vented to the outer air and equipped with an approved automatic sprinkler or other extinguishing system approved by the Fire Commissioner.
Fire Department Regulations, Sec. 6.
. See letter to Rep. Staggers from Assistant Secretary of Health, Education and Welfare Huitt, commenting on the Child Protection Act of 1966, reprinted in 3 U.S.Code Cong. & Admin.News, pp. 4102-06 (1966).
. The House Committee Report accompanying the 1966 amendment to this Act provides in pertinent part:
Preemption
In 1960 this committee and the Senate committee emphasized the importance of uniform regulation of household products at which the act is aimed, which are sold nationally and across State lines. It is impractical, unnecessary, and undesirable for each such product to be labeled specially for those States and cities which have developed their own standards for requiring warnings and their own special forms of warnings over the years during which there was no Federal law. The committee now recommends a limited preemption amendment which would encourage and permit States to adopt requirements identical with the Federal requirements for substances subject to the Federal act, and to enforce them to complement Federal enforcement, but at the same time would free marketers of products sold interstate from varying or adding labeling requirements for such substances now existing or which States and cities might otherwise adopt in the future. This amendment also precludes State or local requirements for cmtionary labeling of substances (distributed interstate or imported) where the alleged hazard is of the general character dealt with by the Federal act but is not of sufficient degree to require cautionary labeling as a hazardous substance under the Federal act; for example, since under the Federal act a substance is not deemed hazardous on account of flammability unless it has a flashpoint of 80° F. or below, substances with a higher flashpoint could not be made subject to State or local warning requirements relating to flammability. On the other hand, if the hazard involved is of a kind not dealt with the Federal act, e. g., the hazards involved in power lawnmowers, the States and localities would continue to be free to impose warning requirements though there is no such Federal requirement. Moreover, the limited preemption amendment relates only to labeling and would not preclude States or localities from prohibiting altogether an article, such as fireworks, which would not be banned under the Federal act if properly labeled.
H.Rep.No.2166, 89th Cong.,
2d Sess. (1966) (emphasis supplied)
U.S.Code Cong. & Admin.News, p. 4097.
See also letter of Assistant Secretary Huitt, footnote 5, supra, 3 U.S.Code Cong. & Admin.News at p. 4104 (1966).
. “This replies to your letter of February 7, 1968, concerning approval or permit numbers.
“As we interpret section 17(b) of the Federal Hazardous Substances Act, it does apply only to cautionary labeling and would not preclude a requirement that labels approved by the New York City Fire Department also bear the approval or permit number.”
. 36 F.R. 10744-45 (June 2, 1971).
. The term “economic poison” means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, nematodes, fungi, weeds, and other forms of plant or animal life or viruses, except viruses on or in living man or other animals, which the Secretary shall declare to be a pest, and (2) any substance or mixture of substances for use as a plant regulator, defoliant or desiccant. [7 U.S.C. § 135(a) (1), (2) (1964)]
(z) The term “misbranded” shall apply_* * *
(2) to any economic poison — * * *
(c) if the labeling accompanying it does not contain directions for use which are necessary and if complied with adequate for the protection of the public;
(d) if the label does not contain a warning or caution statement which may be necessary and if complied with adequate to prevent injury to living man and other vertebrate animals, vegetation, and useful invertebrate animals; * * * [7 U.S.O. § 135 (z) (2) (c), (d) (1964)]
. See 7 C.F.R. § 2762.113(f) (3), formerly 7 C.F.R. § 362.113(f) (3).
. See Hubbard-Hall Chemical Co. v. Silverman, 340 F.2d 402 (1st Cir. 1965) ; Gonzalez v. Virginia-Carolina Chemical Co., 239 F.Supp. 567 (E.D.S.C.1965)