with a more detailed label than that [originally] approved by the EPA.
Id. at 1541.
A number of district court decisions, including the only decision on this subject in the Second Circuit, have followed Ferebee in its general approach. See Thornton v. Fondren Green Apartments, 788 F. Supp. 928, (S.D. Tx. 1992); Montana Pole & Treating Plant v. I.F. Laucks & Co., 775 F. Supp. 1339 (D. Mont. 1991); Evenson v. Osmose Wood Preserving, Inc., 760 F. Supp. 1345 (S.D. Ind. 1990); Stewart v. Ortho Consumer Prods., 1990 U.S. Dist. LEXIS 3391, 1990 WL 36129 (E.D. La. Mar. 26, 1990); Cox v. Velsicol Chem. Corp., 704 F. Supp. 85 (E.D. Pa. 1989); Wilson v. Chevron Chem. Co., 1986 WL 14925 (S.D.N.Y. Dec. 17, 1986)
Two Courts of Appeal and several district courts have rejected Ferebee's analysis and found that FIFRA preempts failure to warn claims. See Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 959 F.2d 158 (10th Cir. 1992); Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991), vacated and remanded for further consideration in light of Cipollone v. Liggett Group, Inc., U.S. , 112 S. Ct. 3020, 120 L. Ed. 2d 892 (1992); Hurt v. Dow Chem. Co., 759 F. Supp. 556 (E.D. Mo. 1990); Kennan v. Dow Chem. Co., 717 F. Supp. 799 (M.D. Fla. 1989); Fisher v. Chevron Chem. Co., 716 F. Supp. 1283 (W.D. Mo. 1989); Watson v. Orkin Exterminating Co., 1988 U.S. Dist. LEXIS 17697, 1988 WL 235673 (D. Md. 1988); Fitzgerald v. Mallinckrodt, Inc., 681 F. Supp. 404 (E.D. Mich. 1987); see also Worm v. American Cyanamid Co., 970 F.2d 1301, (4th Cir. June 19, 1992) (remanding for determination of extent to which plaintiffs' common law claims impose a duty to provide warnings beyond those required by EPA).
Although these decisions generally agree with Ferebee that FIFRA does not expressly preempt failure to warn claims, see, e.g., Papas, 926 F.2d at 1024; Arkansas-Platte, 959 F.2d at 164, they find implied preemption on the grounds that (1) compliance with both state and federal law is not possible, Papas, 926 F.2d at 1025; (2) state tort recoveries would stand as an obstacle to ensuring national uniformity in labels, id.; and (3) Congress has occupied the sub-field of pesticide labeling. Arkansas-Platte, 959 F.2d at 163-64.
The decisions finding implied preemption maintain that Ferebee's conclusion that the imposition of failure to warn liability leaves pesticide manufacturers "free" either to not sell the product in the state or to pay for liabilities resulting from sales is artificial. In practice, the most likely effect of state law failure to warn liability will be to encourage manufacturers and retailers to, seek approval from EPA to change their labels. See Arkansas-Platte, 959 F.2d at 162 ("A business choice between paying damages and changing the label is only notional."). This course of action, the anti-Ferebee cases suggest, would undermine FIFRA in two ways. First, it would amount to the states second-guessing EPA's determination of what constitutes adequate labeling. See id.; Papas, 926 F.2d at 1025. Second, tort liability in individual cases could cause a product-by-product relabeling, thereby defeating FIFRA's goal of achieving "uniformity of labeling across the nation and among . . . different brands of the same pesticide." Papas, 926 F.2d at 1019.
a. Express preemption.
As indicated above, express preemption analysis did not figure in the decisions of the three Courts of Appeal that have faced the present issue. But see Arkansas-Platte, 959 F.2d at 163 (finding that Congress has occupied subfield of labeling essentially on grounds of express preemption provision). Cipollone, however, would appear to have undermined this consensus. See Papas v. Upjohn Co., U.S. , 112 S. Ct. 3020, 120 L. Ed. 2d 892 (1992) (remanding decision finding implied preemption under FIFRA for reconsideration in light of Cipollone). Where there is an express preemption provision, the Supreme court stated that "there is no need to infer congressional intent," Cipollone v. Liggett Group, Inc., U.S. , 112 S. Ct. 2608, 120 L. Ed. 2d 407, 60 U.S.L.W. 4703, 4707 (1992) (quoting California Fed. Sav. & Loan Assn. v. Guerra, 479 U.S. 272, 282, 93 L. Ed. 2d 613, 107 S. Ct. 683 (1987)), at least when the "provision provides a 'reliable indicium of congressional intent with respect to state authority.'" Id. at 4707 (quoting Malone v. White Motor Corp., 435 U.S. 497, 505, 55 L. Ed. 2d 443, 98 S. Ct. 1185 (1978)).
In light of Cipollone, then, courts must focus on the specific wording of preemption clauses, interpreting them narrowly in light of the presumption against preemption. The precise question before the court is whether plaintiffs' failure to warn claims, if successful, would amount to a state-imposed "requirement for labeling or packaging in addition to or different from those required [under FIFRA].
As compared to the two provisions analyzed in Cipollone, the preemption provision of FIFRA lies somewhere in between the 1965 and 1969 cigarette laws. Section 136v(b) prohibits a state from imposing any "requirement" "for labeling or packaging" "different from" EPA requirements. The fact that the provision speaks only to labeling and packaging causes it to resemble the 1965 cigarette act's provision that "no statement relating to smoking or health" "shall be required on any cigarette package." In fact, the 1965 act encroaches further on state powers than FIFRA because it also prohibits the states from mandating added warnings in "advertising" about "smoking and health." Unlike the 1965 act, however, FIFE bars states from imposing "requirements" (rather than from requiring statements), a usage which the Cipollone Court took to have a broader preemptive effect when it construed the 1969 act containing a ban on any state "requirement" with respect to "advertising or promotion" of cigarettes.
According to Cipollone, for purposes of the 1965 cigarette labeling laws, a Ferebee-like distinction must be drawn between state regulatory law and state tort law, with only the former being preempted. Thus, a direct application of that part of the Cipollone case would entail no preemption of plaintiffs' failure to warn causes of action in the instant case. The Court said flatly: "we conclude that . . . the 1965 act only pre-empted state and federal rulemaking bodies from mandating particular cautionary statements and did not preempt state law damages actions." Id. at 4707.
FIFRA's use of the word "requirement," however, cautions against going so far as to adopt the Ferebee distinction between regulatory and common law in its entirety. The word "requirement" in the 1969 cigarette act led the Cipollone court to conclude that such a hard and fast distinction had not been drawn by Congress in the later act. Accordingly, it found plaintiff's state tort law failure to warn claims partially preempted to the extent that they involved claims that cigarette advertisements had provided inadequate warnings.
As already pointed out, however, FIFRA's preemption clause shares some of the characteristics of the narrower 1965 act's preemption clause. In addition, unlike the more restrictive 1969 cigarette law, FIFRA provides a general savings clause explicitly authorizing each state to "regulate the sale or use" of federally registered pesticides within its borders. 7 U.S.C. § 136v(a). While courts must ordinarily construe preemption clauses narrowly, they must be especially cautious when Congress itself has identified an extremely broad area of authorized state conduct. Both the language of FIFRA's preemption clause and the statute's savings clause indicate a congressional design to leave the states with expansive powers to "regulate" pesticides.
Applying the somewhat subtle distinctions of Cipollone, we hold that, if EPA-approved labels were in fact affixed to the relevant containers, plaintiffs may not claim that defendants' products were mislabeled. If, however, warnings to the trade, warnings apart from labels or packaging, limitation on sales to professionals, or other protections falling generally within the ambit of warnings should have been used when the content of the label was fixed by EPA there remains a liability question for the trier of fact. Cf. New York Pesticide Coalition, Inc. v. Jorling, 874 F.2d 115 (2d Cir. 1989) (state regulation requiring notice of pesticide ingredients and dangers to potentially affected persons by signs, advertisements and other means falls within FIFRA savings clause and is not preempted). The possible question of whether EPA was misled by defendants also remains.
b. Implied Preemption
Even ignoring the directive in Cipollone to focus exclusively on express preemption clauses, plaintiffs' failure to warn claims ought to stand against a charge of implied preemption.
Both sides of the debate in the impled preemption cases have a point. The anti-Ferebee cases are persuasive in reasoning that a "business choice between paying damages and changing the label is notional." Arkansas-Platte, 959 F.2d at 162. Yet, applying a finding of implied preempt ion would permit a manufacturer that was or should have been aware of dangers to refrain from informing EPA of needed changes in its product's label and then to hide behind the very label it knew to be inadequate.
It may be that the answer to the conundrum is to find an actionable continuing obligation to inform EPA of product dangers. What is apparent is that on the present state of the law, it cannot be said with any assurance that either or both defendants must prevail. The federalism issue are too important to warrant foreclosing recovery to an injured party on a questionable theory of implied preemption. See, e.g. Paul Wolfson, Preemption and Federalism: The Missing Link, 16 Hastings Const. L.Q. 69 (1988); Marc Z. Edell & Cynthia A. Walters, The Doctrine of Implied Preemption in Products Liability Cases -- Federalism in the Balance, 54 Tenn. L. Rev. 603 (1987).
None of plaintiffs' claims are implicitly preempted. Under the preceding express preemption analysis, however, defendants are entitled to some preemption protection, the precise extent of which need not be determined before completion of discovery.
B. Negligence and Design Defect Claims
Cipollone did not consider the preemptive effect of the cigarette laws on design defect and negligence claims, although it may be assumed from the Court's holdings that the claims would have survived. Even the federal circuit courts that have found failure to warn claims preempted by FIFRA have not held that design defect and negligence claims are also preempted. See Arkansas-Platte, 959 F.2d at 164; Papas, 926 F.2d at 1026. Several district courts finding preemption of failure to warn claims have specifically held that other tort claims are not preempted. See, e.g., Hurt v. Dow Chem. Co., 759 F. Supp. 556, 560 (E.D. Mo. 1990); Kennan v. Dow Chem. Co., 717 F. Supp. 799, 812 (M.D. Fla. 1989).
At least one reported New York state case has, however, found that FIFRA completely preempts state law tort actions. See Little v. Dow Chem. Co., 148 Misc. 2d 11, 559 N.Y.S.2d 788 (N.Y. Sup. Ct. 1990); see also Warner v. American Fluoride Corp., No. 10142/83 (N.Y. Sup. Ct. June 19, 1992). The Little court, while finding Ferebee "compelling," felt obliged to reject Ferebee's interpretation of FIFRA in light of the Supreme Court's interpretation of the federal Clean Water Act in the Ouellette case. Little, 559 N.Y.S.2d at 791. In reaching this conclusion, the state court seems to have been of the view that Ouellette found the Clean Water Act to have preempted all common law nuisance suits concerning water pollution. Id. Ouellette was not nearly so broad, holding only that nuisance suits must be brought under the law of the state from which the pollution emanates. Thus understood, it is hard to see how Ouellette even indirectly undermines Ferebee and all other federal FIFRA cases that have found design defect and negligence actions not preempted. Even were we to consider Little a precedent that must be followed in this diversity case under Erie doctrine -- a doubtful proposition since characterization of preemption is a federal issue -- Little was decided without the benefit of Cipollone. It is not conceivable that any New York state court would now find FIFRA to have completely preempted all state tort law.
As a general rule, compliance with federal standards does not, in and of itself, immunize a manufacturer or retailer from state law tort liability. See Ferebee, 736 F.2d at 1542. FIFRA's savings clause serves to emphasize this point. That EPA must determine whether a pesticide "will perform its intended function without unreasonable adverse effects on the environment" under 7 U.S.C. § 136a(c)(2)(D)(5)(C), does not supplant the state's power to render a judgment as to the relative risks and benefits of the product. Arguably, the EPA determination may be evidence to be considered along with all other relevant evidence in determining whether defendants' behavior was tortious. As with the other issues in this case not yet ripe for resolution, this decision should be left for post-discovery rulings.
Defendants' motions for summary judgment on the grounds of preemption are denied.
July 16, 1992
Brooklyn, New York
Jack B. Weinstein
United States District Judge
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