FIFRA preemption of common-law tort claims after Cipollone.

I. INTRODUCTION

States have a fundamental right to protect their citizens. However, when a plaintiff alleges that a pesticide manufacturer failed to adequately warn of the dangers associated with its products, courts are increasingly concluding that such claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).(1) For example, in Yowell v. Chevron Chemical Co.,(2) the surviving spouse, child, and parents of William Yowell, who died as a result of exposure to pesticides manufactured by Chevron, were denied recovery because the court held that FIFRA preempted their negligence and strict liability Claims.(3) The Yowells' situation is unfortunate; if their case had been heard in Montana or New York, they might have recovered.(4)

FIFRA prohibits sale or distribution of unregistered pesticides(5) and allows the Environmental Protection Agency (EPA) to entirely bar distribution and use of pesticides that will harm the environment.(6) A manufacturer wishing to register its pesticide must submit to EPA a statement which includes a copy of the proposed label, the formula of the pesticide, and a request that the pesticide be classified for general use, restricted use, or both.(7) If requested by EPA, a manufacturer must also provide EPA with descriptions and results of the tests performed on its product.(8) While FIFRA allows states to regulate the sale or use of federally registered pesticides,(9) it does not allow states to require packaging or labeling different from or in addition to the requirements imposed by EPA pursuant to FIFRA.(10)

Federal preemption of state law is derived from the Supremacy Clause, which provides that the laws of the United States "shall be the supreme Law of the Land."(11) Thus, 'state law that conflicts with federal law is "without effect.'"(12) When considering Supremacy Clause issues, the Supreme Court begins "with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress."(13) Courts look to congressional intent, which may be "explicitly stated in the statute's language or implicitly contained in its structure and purpose,"(14) to determine whether a federal act preempts a state law.(15) Intent to preempt is implied either if state law "actually conflicts with federal law"(16) or if "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it."(17)

In the mid-1980s, pesticide manufacturers adopted a new approach to defending common-law tort claims based on a manufacturer's failure to adequately warn of the dangers associated with its product. Manufacturers argue that FIFRA's provision mandating that states not impose labeling requirements different from or in addition to EPA-approved labels preempts common-law damage awards because damage awards are, in essence, a state regulation of a pesticide's label. Since FIFRA preempts state law, including state common law, manufacturers conclude that FIFRA preempts common-law tort claims.

Prior to the Supreme Court's ruling in Cipollone v. Liggett Group, Inc.,(18) courts were split as to whether FIFRA preempted state common-law tort claims based on a manufacturer's failure to adequately warn consumers of the dangers associated with its product.(19) Courts finding no preemption tended to follow the 'choice of reaction' test developed by the D. C. Circuit in Ferebee v. Chevron Chemical Co.(20) Richard Ferebee died from pulmonary fibrosis caused by his exposure to paraquat, a chemical distributed by Chevron.(21) The D.C. Circuit rejected Chevron's argument that imposing damages based on the inadequacy of federally mandated and approved warnings would have an adverse regulatory effect.(22) Specifically, Chevron contended that additional requirements would force manufacturers to use more thorough warnings than those approved by EPA, in conflict with the purpose of the act.(23) Noting that a jury award of damages does not force a manufacturer to change its label, the court set out the choices for a manufacturer held liable for damages under state law. According to the court's analysis, a manufacturer may: (1) petition EPA to alter its label; (2) discontinue selling its product in the state where the damages award was made; (3) distribute additional information about its product; or (4) continue to use the same label and pay damages to successful tort plaintiffs.(24) Underlying the court's analysis is the idea that, between a manufacturer and an injured party, the manufacturer should bear the cost for injuries that it could have prevented by providing a more detailed label.(25)

Shortly after deciding Cipollone, the Supreme Court remanded two FIFRA cases, Papas v. Upjohn Co.(26) and Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc.,(27) that had concluded that FIFRA impliedly preempted common-law claims. On remand, the Tenth and Eleventh Circuits affirmed their prior conclusions. In Papas, the Tenth Circuit held that FIFRA expressly preempts common-law claims; in Arkansas-Platte, the Eleventh Circuit adhered to its earlier decision that preemption was implied. Post-Cipollone FIFRA cases, relying on Cipollone as well as Papas and Arkansas-Platte, have reached various results, finding that state common-law claims are expressly preempted,(28) impliedly preempted,(29) and not preempted.(30) As Justice Blackmun predicted in his Cipollone dissent, lower courts have indeed encountered difficulty in attempting to implement the Court's decision.(31)

This Note analyzes the Supreme Court's decision in Cipollone and applies the Cipollone analysis to FIFRA. It then reviews post-cipollone decisions in light of this analysis and shows how the two courts of appeals decisions have either misinterpreted the Court's decision or incorrectly applied the Court's analysis. This Note concludes that, under the analysis set forth in Cipollone, FIFRA should not preempt common-law tort claims based upon a manufacturer's failure to warn.

II. CIPOLLONE v. LIGGETT GROUP, INC.

The Cipollone case involved claims arising under the Public Health Cigarette Smoking Act of 1969 (1969 Act)(32) and its predecessor, the Federal Cigarette Labeling and Advertising Act of 1965 (1965 Act).(33) The plaintiff, Rose Cipollone, died of lung cancer allegedly resulting from smoking cigarettes manufactured by the defendant, Liggett Group.(34) Her son, Thomas Cipollone, maintained her action against the Liggett Group, alleging that Liggett Group was responsible for Mrs. Cipollone's death by failing to provide adequate warnings about the health consequences of smoking cigarettes.(35) Liggett Group claimed that the 1965 and 1969 Acts preempted a failure to warn action.(36)

Cipollone is a divided opinion: Seven justices held that although the 1965 Act expressly preempted state rulemaking bodies from mandating particular precautionary statements, it did not preempt common-law damages actions.(37) Six justices held that the 1969 Act expressly preempted both state legislation and common-law claims related to inadequate labeling.(38)

The Court's majority opinion articulated a two-part test for determining whether state law is preempted.(39) First, Courts must decide whether Congress expressly addressed preemption in the statute. If Congress did not, courts must determine if preemption is implied. If, however, Congress did speak directly to preemption, courts should not find implied preemption.(40) Instead, courts must next identify the, domain expressly preempted. To determine that domain, the Court suggested looking at the plain language of the statute in light of the presumption against preemption and the statute's purpose and regulatory context.(41)

The Court did not address implied preemption in either the 1965 Act or the 1969 Act because section 5 of each Act expressly covered its preemptive scope.(42) The Court reasoned that since Congress had considered and included an express preemption provision in the 1965 and 1969 Acts, there was no need to infer Congressional intent.(43) However, the Court found that the preemptive provisions in the two Acts differed substantially and thus discussed each Act separately.(44)

A. 1965 Act

In finding that the 1965 Act did not expressly preempt state common-law tort actions, the Court(45) narrowly read the plain language of the Act's preemption provision in light of the presumption against preemption. The Act's provision read, "[N]o statement relating to smoking and health ... shall be required on any cigarette package."(46) The Court determined that, on its face, the provision merely prohibited rulemaking bodies from mandating particular cautionary statements.(47) The Court noted that there was "no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common law damages actions."(48)

The Court concluded that the plain reading of the Act was consistent with its regulatory context and statement of purpose. After the Surgeon General issued a report on the health effects of smoking, state legislatures began trying to regulate cigarette warnings.(49) Motivated by the possibility of multiple, conflicting state regulations, Congress passed the 1965 Act, which provided a single federal standard.(50) There is no evidence that, in passing the 1965 Act, Congress considered that it should apply to common-law claims. Its passage was a direct response to state legislative activity. The Court determined that this regulatory context supports a narrow reading of the preemption provision.(51) The stated purpose of the Act was to avoid nonuniform and confusing cigarette labeling and advertising regulations.(52) Thus, Considering the regulatory context and the Act's statement of purpose, the Court reasoned that "regulation" naturally referred to positive enactments rather than common-law damages actions.(53)

B. 1969 Act

The Court(54) found that the 1969 Act's preemption provision, which bars a "requirement or prohibition ... imposed under State law,"(55) to be broader than the 1965 Act's provision. The Court reasoned that the phrase "requirement or prohibition" "sweeps broadly and suggests no distinction between positive enactments and common law.(56) It concluded that the phrase encompassed common law, because the essence of common law is "to enforce duties that are either affirmative requirements or negative prohibitions."(57) Contradicting its statements made regarding the 1965 Act,(58) and made in earlier decisions,(59) the Court asserted that state regulations can be effectively exerted through common-law damages awards.(60)

III. APPLYING THE CIPOLLONE ANALYSIS TO FIFRA

A. Express Preemption

FIFRA contains express provisions that address preemption of state labeling requirements. Section 136v(b), entitled "Uniformity" reads: "Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required [by EPA]."(61) According to the Cipollone analysis, since the statute specifically addresses states' authority regarding labeling, there is no need to consider implied preemption.(62)

B. Preemptive Domain

Since FIFRA expressly preempts state law "requirements," the next question is whether such requirements encompass state common law as well as state legislation. To answer this question one must look first to the plain language of the statute and then to the statute's purpose, as suggested in Cipollone.(63) The statute's language and purpose, combined with its regulatory scheme and policy considerations, show that the statute does not preempt common-law claims.

1. Plain Language

Statutory analysis begins with an examination of the plain meaning of a statute's terms. The body of common law is not subsumed into the ordinary meaning of the term "requirement." A common-law damages award is not a section 136v(b) "requirement" because a manufacturer has a choice as to whether to change its labels after losing a suit.(64) The D.C. Circuit court reasoned that a common-law right to recovery was not a requirement within FIFRA, because common law is not the equivalent of a direct regulatory command, since the manufacturer 'can comply with both federal and state law by continuing to use the EPA-approved label and by simultaneously paying damages to successful tort plaintiffs."(65)

One could argue that FIFRA's language is more like the language of the 1965 or 1969 Act in Cipollone; however, this argument is not very effective because FIFRA's language is somewhere in the middle.(66) FIFRA's "requirements" is broader than the 1965 Act's "statement" yet not as broad as the 1969 Act's 'requirement or prohibition." Thus, while the two Acts provide some guidelines as to what language would preempt common law, courts should not restrict their analysis of FIFRA's preemption provision to a comparison between FIFRA's preemption language and the language in the two Acts.

As Cipollone pointed out, courts should "give effect to ... [the statute's] plain language unless there is [a] good reason to believe Congress intended the language to have some more restrictive meaning."(67) FIFRA's legislative history indicates that Congress intended to give "[s]tates the authority to impose stricter regulation on pesticides use than that required under the Act."(68) The plain language of section 136v(b) does not clearly indicate that common law should be preempted; in fact, it does not mention state common law at all. In this situation, "[t]he simplest and most obvious explanation for such statutory silence is that Congress never intended to displace state common law claims."(69)

Furthermore, "[a]ny indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever it

chooses to assure full federal authority, completely displacing the States."(70) In fact, in other statutes Congress clearly distinguished between state-enacted law and common-law claims.(71)

Prior to 1988, the only decision interpreting FIFRA preemption was Ferebee, in which the court used the choice of reaction analysis to find that FIFRA did not preempt common-law claims.(72) When Congress amended FIFRA in 1988,(73) it had the opportunity to clarify its intent regarding FIFRA preemption and the meaning of the term "requirement"; however, it only added the heading "Uniformity" to 136v(b). One may therefore infer that Congress agreed with the D.C. Circuit's holding that FIFRA did not preempt common-law claims. Thus, a narrow reading of FIFRA's plain language, in light of the presumption against preemption,(74) indicates that FIFRA does not preempt common-law claims.

2. Purpose

Since the purposes of FIFRA and common-law remedies do not conflict, FIFRA should not preempt common law. In fact, federal legislation has traditionally established a floor of safe conduct rather than a ceiling on states' ability to protect their citizens.(75) FIFRA's purpose is to prevent harm to consumers from unsafe pesticides,(76) whereas the purpose of common-law damages is to compensate victims. In Ferebee, the D.C. Circuit envisioned FIFRA and the common law working together to protect citizens, with FIFRA setting minimum standards of safe conduct and common-law damages compensating individuals whose injuries could have been prevented with a more detailed label than the one approved by EPA.(77) Since FIFRA and the common law are compatible, common-law claims are not preempted.

3. Regulatory Scheme

While not articulated as part of the Cipollone two-part, test for preemption, the Court investigated the social and political context of the 1965 and 1969 Acts, and examined the Act's regulatory structure before determining the purpose of the Acts.(78) An examination of FIFRA's regulatory scheme is therefore important, because it reveals that, while EPA's regulations covering the registration and re-registration of pesticides appear to be comprehensive, there are gaps in these two processes which may allow hazardous substances into the market without proper warnings. Within these gaps, citizens should be able to rely on state common law for protection and compensation.

Under FIFRA, EPA registers pesticides and approves labels based solely upon the information provided to it by the manufacturer. The manufacturer conducts the testing of pesticides;(79) EPA neither conducts independent testing nor attempts to verify the manufacturer's test data.(80) Furthermore, manufacturers are not required to provide EPA with testing data; instead, a manufacturer only has to supply this information if EPA requests it,(81) and EPA's own regulations imply that EPA seldom requests such information.(82) This process gives manufacturers the opportunity to withhold undesirable test data, to alter data, or to inadequately test their products, so that harmful pesticides in the market place are not detected until citizens are harmed.(83)

Additionally, FIFRA does not contain any provision mandating that a manufacturer change its label when it receives additional information indicating that its product may be harmful. Thus, preemption of common-law claims would allow "a manufacturer that was or should have been aware of dangers" resulting from its products 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."(84)

Pesticides must be re-registered every five years, but the manufacturer is not required to submit new data to re-register its product.(85) During re-registration, if the pesticide's safety becomes an issue, EPA may not revoke the pesticide's registration unless the EPA Administrator deems revocation necessary to prevent an imminent hazard.(86) While EPA jumps through the procedural hoops necessary to remove a pesticide from the market place, the public is threatened by potential harm. Additionally, the re-registration of older pesticides marketed before FIFRA, and therefore not previously subject to modem testing procedures, is far behind schedule.(87) These older, potentially dangerous pesticides remain on the market during the re-registration process. Given the holes in FIFRA's current regulatory scheme and the states' interests in protecting their citizens, FIFRA should not preempt common-law claims.

4. Policy

Policy considerations support allowing common-law claims to coexist with regulation under FIFRA. Neither federal law generally nor FIFRA specifically affords protection for individuals harmed as a result of manufacturers' failure to warn. Moreover, state-enacted law and common law are distinguishable in that they have different functions and purposes.

First, FIFRA should not preempt common-law claims because in many instances preemption will cut off a victim's light to compensation.(88) As Judge Weinstein has noted, "protection of the public against toxic substances has traditionally been a matter left to the states ... [which] have developed a complex, interlocking set of statutory and common law substantive, procedural and remedial tort rules ... to provide compensation for injuries and to help deter injurious behavior."(89) Judge Weinstein contrasted the states' system with the federal government's, which has never adopted comprehensive legislation for compensating citizens harmed by hazardous products, and concluded that because preemption would leave many injured citizens without recourse, common law should not be preempted.(90)

Second, in other preemption situations, courts have considered whether the federal act in question affords substitute remedies for the claims previously addressable under common law.(91) Courts have generally found that common law is preempted if the federal act contains an alternative means of redress for victims.(92) A manufacturer can be sued under FIFRA only if the manufacturer fails to comply with EPA guidelines promulgated pursuant to FIFRA. However, FIFRA does not prescribe a remedy for victims harmed by a manufacturer's failure to warn.

Third, FIFRA and state common law have different functions. The function of tort law is to compensate victims for past injury or harm, whereas FIFRA is preventive in nature.(93) Additionally, tort claims have an indirect effect on manufacturers' behavior, while FIFRA and other state statutes directly regulate behavior. Tort claims allow manufacturers some level of choice in shaping their behavior because they may pay damage awards and keep their labels or choose to avoid future suits by dispensing Warnings.(94) Furthermore, common sense dictates that "the costs of injuries resulting from defective products [should be] borne by the manufacturers ... that put such products on the market rather than by the injured persons who are powerless to protect themselves.'"(95)

Policy concerns, like the regulatory framework used to implement a statute, were not articulated as part of the Cipollone two-part test for preemption; however the Court looked closely at these additional factors when determining the purpose of the 1965 and 1969 Acts.(96) Because common law provides a remedy for pesticide users that FIFRA does not, and serves a compensatory and deterrent function that is different and separate from the regulatory function of FIFRA, FIFRA should not preempt common law.

IV. POST-CIPOLLONE CASES

A. Papas v. Upjohn Co.(97)

Mr. Papas suffered health problems as a result of his exposure to pesticides while working for the Humane Society.(98) Before Cipollone, the Eleventh Circuit found implied preemption of common-law claims because recognition of these claims would result in a direct conflict with FIFRA.(99) The court reasoned that since Congress intended for EPA to determine the adequacy of labels and the reasonableness of the risk to citizens, allowing a jury to determine a label's adequacy would undermine FIFRA.(100)

On remand after Cipollone, the court changed its analysis but not its result, finding that FIFRA expressly preempted common-law claims.(101) The court correctly applied the first part of the Cipollone analysis because upon finding express preemption the court did not address implied preemption. In determining that common law was within the domain of express preemption, the court simply stated, "Cipollone convinces us that the term `requirements' in [sections] 136v(b) `sweeps broadly and suggests no distinction between positive enactments and the common law.'"(102) The court failed to explain precisely how or why Cipollone convinced it. The term "requirements" in FIFRA is less broad than the 1969 Act's "requirements and prohibitions." Consequently, the court seems to have ignored the factual differences between the plaintiffs in Papas and Cipollone, skipped over any consideration of the context and policy underlying the purpose of FIFRA, overlooked FIFRA's plain language and blindly latched onto Cipollone as a means to support its preemption finding.

The Eleventh Circuit failed to acknowledge Ferebee or the Cipollone majority's statement that "there is no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common law damages actions."(103) Instead, the court cited San Diego Building Trades Council v. Garmon(104) for the proposition that common-law damages are a form of state regulation and are thus requirements within [sections] 136v. However, the court overlooked that the Supreme Court had previously distinguished preemption in Garmon.(105) Because the court failed to adequately explain why common-law claims should be expressly preempted, Papas provides no guidance for subsequent FIFRA cases in other circuits.

B. Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc.(106)

Arkansas-Platte & Gulf (AP&G) succeeded to ownership of property previously occupied by a wooden fence-post treatment facility that used pentachlorophenol (PCP) products. AP&G sued the prior owner because the PCP-containing products manufactured by the defendant seeped through the ground and made several AP&G employees ill. On remand, the Tenth Circuit affirmed its holding that FIM impliedly preempted common-law claims because common-law tort claims would directly conflict with FIFRA.(107)

The Tenth Circuit failed to follow the Supreme Court's directive that courts should first consider express preemption. The court decided that FIFRA's language was like the language in the 1969 Act and that since the 1969 Act preempted common-law claims, FIFRA should too. While the 1969 Act may serve as a guideline, courts should not decide such a vital issue as preemption of common-law claims simply by comparing the language of two acts with different regulatory schemes. For example, the intrinsic structure of FIFRA and the 1969 Act differ in at least one important way: the 1969 Act dealt with one specific label which appeared on every pack of cigarettes regardless of the manufacturer, while FIFRA allows each manufacturer to draft, for EPA approval, its own label for each particular product it manufactures. The 1969 Act did not allow for altering the label, whereas FIFRA allows manufacturers to petition EPA to change their labels.

The Supreme Court was not simply saying, "choose an act;" it clearly set out a two-part test and listed factors to consider when identifying the preemptive domain. FIFRA courts should not follow Arkansas-Platte because the court failed to follow the Cipollone analysis, failed to address the presumption against preemption, and failed to consider the differences between the smoking statutes in Cipollone and FIFRA.

Most of the post-Cipollone FIFRA cases based their decisions on Papas and Arkansas-Platte and thus incorrectly concluded that FIFRA preempts common law.(108) Generally, the courts either skipped over express preemption altogether or found express preemption of state-enacted law and then found implied preemption of common-law claims through occupation of field or actual conflict.

C. Post-Cipollone Cases Finding No Preemption

A few post-Cipollone courts ignored Papas and Arkansas-Platte and correctly followed the Supreme Court's Cipollone analysis. One such court is the Montana District Court deciding Couture v. Dow Chemical U.S.A.,(109) which involved a plaintiff who developed T-cell lymphoma as a result of his exposure to herbicides.(110) The court followed the Cipollone analysis, initially finding that Congress expressly defined the preemptive reach of FIFRA.(111) After considering the provision's plain language in light of the presumption against preemption, the court held that FIFRA does not expressly preempt common-law claims.(112) The court also kept policy considerations in mind when deciding Couture: "This court remains circumspect in applying a broad preemption analysis which would displace state law and would extinguish an individual's right under state law to pursue a common law damage action. Cipollone, when considered in light of the Court's preemption jurisprudence, mandates that caution."(113)

Another post-Cipollone case which correctly applied the Cipollone analysis is Burke v. Dow Chemical Co.,(114) in which two children were born with brain damage as a result of their mother's exposure to pesticides during pregnancy.(115) First, Judge Weinstein found that FIFRA contained an express preemption provision with respect to states' labeling requirements.(116) Judge Weinstein agreed with Ferebee that common-law claims should not be preempted because they are different from state law in that manufacturers have a choice of reactions.(117) Based on the presumption against preemption, the statute's language, and policy, he concluded that FIFRA did not expressly preempt common-law claims.(118)

V. CONCLUSION

Cipollone set out a clear two-part preemption test which many post-Cipollone decisions did not follow. The reasoning for not including common law within the express preemption domain began in 1984 with the Ferebee "choice of reaction" analysis, continued through Blackmun's Cipollone dissent, and survives in Burke and Couture. Given the strong presumption against preemption, the plain language of FIFRA's preemption provision, FIFRA's purpose and regulatory context, and policy concerns, courts should follow Couture and Burke and find that FIFRA does not preempt common-law tort claims based on failure to warn.

Because FIFRA governs the labeling, sale, and use of pesticides, compliance with FIFRA is essential to the health and safety of the public. However, courts should not, by preempting common law, give so much deference to FIFRA that they override states' interests in protecting their citizens and leave injured and ill individuals without recourse. Until Congress strengthens FIFRA's regulatory scheme, consumers "must still look to the great font of state tort law for protection against harmful substances."(119) (1) 7 U.S.C. [subsections] 136-136y (1988 & Supp. V 1993). (2) 836 S.W.2d 62 (Mo. Ct. App. 1992). (3) Id. at 62-63. (4) Courts in these states have held that FIFRA does not preempt plaintiffs' common-law claims. Couture v. Dow Chem. U.S.A., 804 F. Supp. 1298, 1299 (D. Mont. 1992) (allowing tort claim of strict liability based on the manufacturer's failure to warn plaintiff of the dangers associated with the use of its herbicides to survive a motion for summary judgment); Burke v. Dow Chem. Co., 797 F. Supp. 1128, 1132-34 (E.D.N.Y. 1992) (allowing alternative products liability claims regarding the manufacture and use of the pesticide chlorpyrifos (Dursban), including design defect, failure to warn, and negligence, to survive a motion for summary judgment). (5) 7 U.S.C. [sections] 136a(a) (1988) (6) Id.; 7 U.S.C. [sections] 136a(c)(5)(D) (1988). (7) 7 U.S.C. [sections] 136a(c)(1) (1988). (8) 7 U.S.C. [sections] 136a(c)(1)(D) (1988). (9) 7 U.S.C. [sections] 136v(a) (1988). (10) 7 U.S.C. [sections] 136v(b) (1988). (11) U.S. Const. art. VI, cl. 2. (12) Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608, 2617 (1992) (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). (13) Cipollone, 112 S. Ct. at 2617 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 1947)). (14) Id. (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). (15) Id. (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963))). (16) Id. (citing Pacific Gas & Elec. Co. v. Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190 (1983)). (17) Id. quoting Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153 (1982) (quoting Rice, 331 U.S. at 230)). (18) 112 S. Ct. 2608 (1992). (19) Pre-Cipollone cases finding preemption include Young v. American Cyanamid Co., 786 F. Supp. 781, 783 (E.D. Ark. 1991) (finding preemption of inadequate labeling and failure to warn claims concerning use of the pesticide Scepter/Tri-Scept, and granting manufacturer's motion for summary judgment); Kennan v. Dow Chem. Co., 717 F. Supp. 799, 811-12 (M.D. Fla. 1989) (finding preemption of failure to warn claim regarding decedent's exposure to pesticide products containing PCP, and granting manufacturer's motion for summary judgment on that issue, but precluding summary judgment on plaintiff s alternative claim of strict product liability); Fisher v. Chevron Chem. Co., 716 F. Supp. 1283, 1289 (W.D. Mo. 1989) (finding preemption of failure to warn claim involving sale of herbicide to nonparty aerial sprayer and granting manufacturer's motion to dismiss, but denying manufacturer's motion on plaintiff's alternative strict liability claim); Fitzgerald v. Mallinckrodt, 681 F. Supp. 404, 407-08 (E.D. Mich. 1987) (finding preemption of claims of negligent labeling and failure to warn regarding exposure to inorganic mercury-based fungicide, and granting manufacturer's motion for summary judgment).

Pre-Cipollone cases finding no preemption include Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1532-34 (D.C. Cir.) (allowing jury verdict for wrongful death based on strict products liability for failure to warn of the dangers of paraquat, a herbicide), cert. denied, 469 U.S. 1062 (1984); Thornton v. Fondren Green Apartments, 788 F. Supp. 928, 932 (S.D. Tex. 1992) (allowing failure to warn claim concerning indoor use of pesticide containing chlordane to survive a motion for summary judgment); Riden v. ICI Americas, Inc., 763 F. Supp. 1500, 1509 (W.D. Mo. 1991) (allowing failure to warn claims regarding use of rat poison, and denying manufacturer's motion to dismiss); Cox v. Velsicol Chem. Corp., 704 F. Supp. 85, 87 (E.D. Pa. 1989) (allowing failure to warn claims regarding exposure to pesticides containing chlordane to survive manufacturer's motion for summary judgment); Roberts v. Dow Chem. Co., 702 F. Supp. 195, 199 (N.D. Ill. 1988) (allowing failure to warn claims regarding use of the flea pesticide Dursban to survive manufacturer's motion for summary judgment). (20) 736 F.2d 1529 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984). The D.C. Circuit was the first court of appeals to address whether FIFRA preempts state common-law tort actions.

Courts following the Ferebee analysis include Burke v. Dow Chem. U.S.A, 797 F. Supp. 1128,1138 (E.D.N.Y. 1992); Riden, 763 F, Supp. at 1507; Montana Pole & Treating Plant v. I.F. Laucks & Co., 775 F. Supp. 1339, 1344 (D. Mont. 1991), aff'd on other grounds, 993 F.2d 676, 680 (9th Cir. 1993) (holding that summary judgment was proper because the plaintiff's property damage claims were time-barred, and therefore not reaching the FIFRA preemption issue raised on cross-appeal). (21) Ferebee, 736 F.2d at 1531-32. (22) Id. at 1540-41. (23) Id. at 1539-41. (24) Id. at 154243. (25) Id. at 1541. (26) 926 F.2d 1019 (11th Cir. 1991), vacated and remanded, 112 S. Ct. 3020 (1992), aff'd on remand, 985 F.2d 516 (1993), cert. denied, 114 S. Ct. 300 (1993). (27) 959 F.2d 158 (10th Cir.), vacated and remanded, 113 S. Ct. 314 (1992), aff'd on remand, 981 F.2d 1177 (10th Cir.), cert. denied, 114 S. Ct. 60 (1993). (28) See, e.g., Levesque v. Miles Inc., 816 F. Supp. 61, 69 (D.N.H. 1993); DerGazarian v. Dow Chem. Co., 836 F. Supp. 1429,1447 (W.D. Ark. 1993); Gibson v. Dow Chem. Co., 842 F. Supp. 938, 939 (E.D. Ky. 1992). (29) See, e.g., Yowell v. Chevron Chem. Co., 836 S.W.2d 62, 66 (Mo. Ct. App. 1992); Davidson v. Velsicol Chem. Corp., 834 P.2d 931, 932 (Nev. 1992), cert. denied, 113 S. Ct. 1944 (1993). (30) See, e.g., Couture v. Dow Chem. U.S.A, 804 F. Supp. 1298, 1302 (D. Mont. 1992); Burke v. Dow Chem. Co., 797 F. Supp. 1128, 1142 (E.D.N.Y. 1992). (31) Cipollone, 112 S. Ct. at 2631 (Blackmun, J., dissenting). (32) Pub. L. No. 91-222, 84 Stat. 87 (1970) (codified as amended at 15 U.S.C. [subsections] 1331-1340 (1988)). (33) Pub. L. No. 89-92, 79 Stat. 282 (1965) (codified as amended at 15 U.S.C. [subsections] 1331-1340 (1988)). (34) Cipollone, 112 S. Ct. at 2613. (35) Cipollone, 112 S. Ct. at 2613-14. Cipollone also alleged breach of express warranty, fraudulent misrepresentation, and conspiracy to defraud. The Court found that these claims were not preempted by the 1969 Act. Id. at 2625. (36) Id. at 2614. The Cipollone case had a long and colorful history. In a pretrial ruling, the trial court rejected the preemption defense. Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146, 1148 (D.N.J. 1984). On interlocutory appeal the court of appeals reversed the trial court. Cipollone v. Liggett Group, Inc., 789 F.2d 181, 187 (3d Cir. 1986). On remand, the trial court held that the failure to warn claim was preempted to the extent that it relied on advertising or promotional activities. Cipollone v. Laggett Group, Inc., 649 F. Supp 664, 668-69 (D.N.J. 1986). At trial, the jury found that the defendant failed to warn of dangers associated with its product but no damages were awarded on this ground because Ms. Cipollone voluntarily encountered a known danger by smoking. Cipollone v. Liggett Group, Inc., 693 F. Supp. 208, 210 (D.N.J. 1988). The court of appeals affirmed the trial court's preemption ruling but ordered a new trial on other issues. Cipollone v. Liggett Group, Inc., 893 F.2d 541, 582-83 (3d Cir. 1990). At that point, the Supreme Court granted certiorari. Cipollone v. Liggett Group, Inc., 499 U.S. 935 (1991). The Court reversed in part, affirmed in part, and remanded the case.

Based upon Judge Sarokin's comments in Haines v. Liggett Group, Inc., 975 F.2d 81, 97-98 (3d Cir. 1992), concerning the tobacco industry's alleged concealment of the dangers of tobacco smoking, and his subsequent removal from that case, Liggett Group successfully forced his recusal. Cipollone v. Liggett Group, Inc., 799 F. Supp. 466 (D.N.J. 1992). (37) Justice Stevens, joined by Chief Justice Rehnquist, and Justices White, O'Connor, Blackmun, Kennedy, and Souter, adopted Ferebee's "choice of reaction" test and held that the 1965 Act did not preempt common-law damages claims. Cipollone, 112 S. Ct. at 2619. (38) Justice Stevens, joined by Chief Justice Rehnquist and Justices White and O'Connor extended the plurality's decision and held that the 1969 Act preempted some of Cipollone's common-law claims. Id. at 2619-25. Employing a different analysis, Justices Scalia and Thomas concluded that all common-law claims were preempted by the 1965 and 1969 Acts. Id. at 2632. (39) This test was discussed in Malone v. White Motor Corp., 435 U.S. 497, 504-05 (1978) (holding that the National Labor Relations Act does not preempt state regulatory power over pension plans) and in California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280-84 (1987) (holding that California's Fair Employment and Housing Act is not preempted by Title VII of Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act). (40) Cipollone, 112 S. Ct. at 2618. (41) Id. at 2618-19. (42) Id. at 2618. (43) Id. (44) Id. (45) In this section, "the Court" refers to Chief Justice Rehnquist and Justices Stevens, White, O'Connor, Blackmun, Kennedy, and Souter. (46) 15 U.S.C. [sections] 1334(a) (1988). (47) Cipollone, 112 S. Ct. at 2618. (48) Id. ("That Congress requires a particular warning label does not automatically preempt a regulatory field."). (49) Id. at 2616 (citations omitted). (50) Id. (51) Id. at 2619. (52) 15 U.S.C. [sections] 1331(2) (1988). (53) Cipollone, 112 S. Ct. at 2619. (54) "The Court" in this section refers to Chief Justice Rehnquist and Justices Stevens, White, and O'Connor. Although Justices Scalia and Thomas concurred in the outcome, Justice Scalia's dissent adopts a different analysis of the 1969 Act. (55) 15 U.S.C. [sections] 1334(b) (1988). (56) Cipollone, 112 S. Ct. at 2620. (57) Id. (58) See supra text accompanying note 48. (59) Cipollone, 112 S. Ct. at 2628 (Blackmun, J. dissenting); see also id. at 2628-29 (listing cases where the Court has distinguished, for preemption purposes, state-enacted law from common-law damages actions). (60) Id. at 2628. (61) 7 U.S.C. [sections] 136v(b) (1988). (62) See supra text accompanying notes 39-44. (63) See supra text accompanying note 41. (64) See supra text accompanying note 24. (65) Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1541 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984). (66) Burke v. Dow Chem. Co., 797 F. Supp. 1128, 1139 (E.D.N.Y. 1992). (67) Cipollone, 112 S. Ct. at 2620 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)). (68) S. Rep. No. 838, 92d Cong., 2d Sess. 30 (1972), reprinted in 1972 U.S.C.C.A.N. 3993, 4021. (69) Yowell v. Chevron Chem. Co., 836 S.W.2d 62, 67 (Mo. Ct. App. 1992) (Shrum, P.J., dissenting).

Sandi L. Pellikaan Student, Northwestern School of Law of Lewis & Clark College, J.D. expected 1995. B.A. 1987, English, Stephen F. Austin State University. I wish to extend special thanks to Professor Amy Bushaw for her (70) Cipollone, 112 S. Ct. at 2626, (Blackmun, J. dissenting) (quoting Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 780 (1947) (opinion of Frankfurter, J.)). (71) Statutes with provisions explicitly preempting state common law remedies include: Domestic Housing and International Recovery and Financial Stability Act, 12 U.S.C. [subsections] 1715z-1718 (1988 & Supp. V 1993); Copyright Act of 1976, 17 U.S.C. [sections] 301(a) (1988); Employee Retirement Income Security Program, 29 U.S.C. [sections] 1144(a), (c)(1) (1988). But see Smokeless Tobacco Health Education Act of 1986, 15 U.S.C. [sections] 4406(c) (1988) ("Nothing... shall relieve any person from liability at common law or under state statutory law...."). (72) Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1541-42 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984). (73) Pub. L. No. 100-532, 102 Stat. 2654 (1988) (codified as amended at 7 U.S.C. [subsections] 136-136y (1988)). (74) Cipollone, 112 S. Ct. at 2618; New York State Dep't of Social Servs. v. Dublino, 413 U.S. 405, 413 (1973) (finding that Congress should manifest its intentions clearly because "[t]he exercise of federal supremacy is not lightly to be presumed." (citing Schwartz v. Texas, 344 U.S. 199, 202-03 (1952))). (75) See Ferebee, 736 F.2d at 1543. (76) Fisher v. Chevron Chem. Co., 716 F. Supp. 1283, 1287 (W.D. Mo. 1989). (77) Ferebee, 736 F.2d at 1543. (78) Cipollone, 112 S. Ct. at 2616-17. (79) See 40 C.F.R. [sections] 158.80 (1994) (EPA guidelines for testing methodology). (80) See Tybe A. Brett & Jane E.R. Potter, Risks to Human Health Associated with Exposure to Pesticides at the Time of Application and the Role of the Courts, 1 Vill. Envtl. L.J. 355, 359 (1990) (discussing the operation of the FIFRA regulatory framework). (81) 7 U.S.C. [sections] 136a(c)(1)(d) (1988); see also 40 C.F.R. [sections] 158.75 (1994). (82) See 40 C.F.R. [sections] 158.75(a) (1994). (83) See Brett & Potter, supra note 80, at 359 n. 17 (discussing occasions on which pesticides were "registered dispite [sic] disturbing patterns of questionable testing procedures by registrants and testing firms hired by registrants" (citations omitted)). (84) Burke v. Dow Chem. U.S.A., 797 F. Supp. 1128, 1141 (E.D.N.Y. 1992). (85) 7 U.S.C. [sections] 136d(a)(1) (1988 & Supp. V 1993). (86) Burke, 797 F. Supp. at 1135. (87) See Valle S. Dutcher, The Marlboro Man Meets the Orkin Man: The Effect of Cipollone v. Liggett Group, Inc. on Federal Preemption by the Federal Insecticide, Fungicide and Rodenticide Act of Failure to Warn Claims Brought under State Tort Law, 15 J. PRODS. & Toxics Lian. 29, 38 (1993). (88) See Cipollone, 112 S. Ct. at 2630 (Blackmun, J., dissenting) (pointing out that it is unlikely Congress would have eliminated the only means of judicial recourse for individuals injured by a manufacturer's unlawful conduct); see also Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 263 (1984) (Blackmun, J., dissenting) ("It is inconceivable that Congress intended to leave victims with no remedy at all."); Burke, 797 F. Supp. at 1132 (Too ready a tendency to declare the state protective shield replaced by the still somewhat spotty federal protections will leave many injured persons without recourse."). (89) Burke, 797 F. Supp. at 1131-32. (90) Id. at 1132. The federal government "is a relative newcomer to this area and its tentative forays into the field have mainly been designed to ensure that products can pass freely from one state to another without the need for repackaging." Id. (91) See Marc Z. Edell & Cynthia A. Walters, The Doctrine of Implied Preemption in Products Liability Cases--Federalism in the Balance, 54 Tenn. L. Rev. 603, 607-09 (1987) (discussing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 246-47 (1959)). (92) See Garmon, 359 U.S. at 252 (Harlan, J., concurring). (93) Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1540 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984). (94) Cipollone, 112 S. Ct. at 2628 (Blackmun, J., dissenting) (noting that manufacturers may provide additional warnings through package inserts, public service advertisements, or general education programs); see also supra text accompanying note 24. (95) Yowell v. Chevron Chem. Co., 836 S.W. 2d 62, 67 (Mo. Ct. App. 1992) (Shrum, P.J., dissenting) (quoting Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 365 (Mo. 1969) (en banc)). (96) Cipollone, 112 S. Ct. at 2616-17. (97) Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991), vacated and remanded, 112 S. Ct. 3020 (1992), aff'd on remand, 985 F.2d 516 (1993), cert. denied, 114 S. Ct. 300 (1993). (98) Id. at 1020. (99) Id. at 1024-25. (100) Id. at 1025-26. (101) Papas v. Upjohn Co., 985 F.2d 516, 517 (11th Cir. 1993) cert. denied, 114 S. Ct. 300 (1993). (102) Id. at 518 (quoting Cipollone, 112 S. Ct. at 2620). (103) Cipollone, 112 S. Ct. at 2618. (104) 359 U.S. 236 (1959). (105) Cipollone, 112 S. Ct. at 2628 n.3 (Blackmun, J., dissenting) ("Garmon, in which a state common-law damages award was found to be pre-empted by the National Labor Relations Act, involved a special `presumption of federal pre-emption' relating to the primary jurisdiction of the National Labor Relations Board."). (106) Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 959 F.2d 158 (1992), aff'd on remand, 981 F.2d 1177 (10th Cir.), cert. denied, 114 S. Ct. 60 (1993). (107) Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 981 F.2d 1177 (10th Cir.), cert. denied, 114 S. Ct. 60 (1993). (108) See, e.g., Levesque v. Miles Inc., 816 F. Supp. 61, 68-69 (D.N.H. 1993) (following Papas v. Upjohn Co., 985 F.2d 516 (11th Cir. 1993) cert. denied, 114 S. Ct. 300 (1993)). Cases following Arkansas-Platte include Yowell v. Chevron Chem. Co., 836 S.W.2d 62, 66 (Mo. Ct. App. 1992); Davidson v. Velsicol Chem. Corp., 834 P.2d 931, 937 (Nev. 1992), cert. denied, 113 S. Ct. 1944 (1993). (109) Couture v. Dow Chem. U.S.A., 804 F. Supp. 1298 (D. Mont. 1992). (110) Id. at 1299. (111) Id. at 1302. ("[T]he preemptive reach of 7 U.S.C. [sections] 136v(a), (b), was expressly designed to preclude states' rule-making bodies from mandating labeling and packaging requirements different from those imposed by the EPA pursuant to FIFRA."). (112) Id. at 1302-03. (113) Id. at 1302. (114) 797 F. Supp. 1128 (E.D.N.Y. 1992). (115) Id. at 1130. (116) Id. at 1136. (117) Id. at 1138, 1141; see also supra text accompanying note 24. (118) Id. at 1141-42. (119) Id. at 1132.