How to fight FIFRA preemption.

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) grants authority to the U.S. Environmental Protection Agency (EPA) to investigate and register pesticides and herbicides and suspend or cancel registrations when appropriate.(1) This authority previously rested with the U.S. Department of Agriculture (USDA).

The EPA's decisions to register a product or to suspend or cancel a registration must be based on a broad societal and environmental risk/benefit analysis, which is made by the agency's administrator. Whenever the administrator determines that a pesticide generally causes "unreasonable adverse effects on the environment," the administrator may issue a notice of intent to either cancel a pesticide's registration or hold a hearing on that issue.(2)

As part of the FIFRA registration process, product registrants submit packaging labels for EPA approval. FIFRA requires that products registered under it be packaged only with EPA-approved labels. FIFRA also requires uniform labeling throughout the United States. These provisions are the textual bases for assertions of the preemption defense in products liability cases in which the plaintiff alleges that warning labels affixed to FIFRA-registered products are improper or incomplete.

Two sections of FIFRA discuss labeling uniformity. These sections are critical to preemption analysis. Section 136v(a) states, "In General.... A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter."

Section 136v(b) states, "Uniformity. ... Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." (emphasis added)

Section 136v(a) grants the states authority to regulate the sale and use of pesticides within their borders, so long as the regulations are not less stringent than FIFRA's prohibitions. However, under subdivision 136v(b), states may not interfere with the uniformity of pesticide labeling or packaging contemplated by FIFRA. The preemption defense is derived from subdivision 136v(b).

In Wisconsin Public Intervenor v. Mortier, the U.S. Supreme Court considered preemption of state and local regulatory authority under FIFRA.(3) The Wisconsin Supreme Court had held that FIFRA preempted a town's regulatory power to permit certain applications of pesticides. The U.S. Supreme Court, however, unanimously reversed the judgment and held that

* FIFRA does not preempt the local regulation of pesticide use;

* the legislative history of FIFRA is ambiguous and does not demonstrate a congressional intent to preempt local regulation of pesticides;

* FIFRA does not provide any express indication of congressional intent to supplant local authority over pesticide regulation; and

* there was no actual conflict between FIFRA and the Wisconsin town ordinance nor between FIFRA and local regulation generally.

In reaching these conclusions, the Court said,

Properly read, the statutory language tilts in favor of local regulation.... [T]he more plausible reading of FIFRA's authorization to the States leaves the allocation of regulatory authority to the "absolute discretion" of the States themselves, including the option of leaving local regulation of pesticides in the hands of local authorities.(4)

The Mortier Court established that FIFRA's preemptive provisions are to be narrowly construed as to state regulatory power over pesticide sale and use.(5)

Federal preemption of state law arises by operation of the Supremacy Clause of the U.S. Constitution.(6) In Mortier, the Supreme Court held there is a presumption against federal preemption. The Court wrote, "When considering preemption, 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'"(7)

After Mortier, in Cipollone v. Liggett Group, Inc., the Supreme Court described federal preemption analysis as follows:

Congress' intent may be "explicitly stated in the statute's language or implicitly contained in its structure and purpose." In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law, 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.'"

When Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a reliable indicium of congressional intent with respect to state authority, "there is no need to infer congressional intent to preempt state laws from the substantive provisions" of the legislation. Such reasoning is a variant of the familiar principle of expressio unius est exlusio alterius [the expression of one thing is the exclusion of another]: Congress' enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted.(8)

Cipollone reiterated that tort actions are a form of state regulation.(9) Because FIFRA expressly reserves state regulatory power over the sale and use of pesticides and because tort actions are a form of state regulatory power, all state law tort remedies that do not impose labeling or packaging requirements different from, or additional to, those mandated by FIFRA are not preempted. This conclusion is consistent with the narrow view of preemption taken in Cipollone.(10)

Nevertheless, the consistent holding of post-Cipollone cases has been that failure to warn claims based on the alleged inadequacy of pesticide labels are preempted by FIFRA.(11) The lone clear dissent from this position is to be found in Couture v. Dow Chemical U.S.A.(12)

In that case, the plaintiff sued Dow and others, alleging that his T-cell lymphoma was caused by exposure to their herbicides. The U.S. District Court for Montana observed that in matters that have traditionally been governed by the states, like tort liability law, federal preemption is not to be lightly inferred.(13) Still, lawyers should note that most cases have held that claims based on failure to warn have been preempted.

Viable Claims

In Cipollone, the Court's decision invalidated state law failure to warn claims under the Federal Cigarette Labeling and Advertising Act only to the extent that the claims asserted that the manufacturer's "post-1969 advertising or promotions should have included additional, or more clearly stated, warnings."(14) The Supreme Court expressly held that products liability claims based on a manufacturers' testing or research practices, or other activities unrelated to advertising or promotion, are not preempted by the federal act.(15)

Most post-Cipollone cases have invalidated only those tort claims that challenge the content of the labels affixed to pesticides at the time of distribution. These cases have not invalidated products liability claims based on inherent product defects or a manufacturer's or distributor's negligence in testing or research. The main question that arises is "'whether the legal duty that is the predicate of the common law damages action constitutes' a requirement for labeling or packaging that is in addition to or different from those required by FIFRA."(16)

For example, failure to warn claims predicated on either a manufacturer's failure to provide follow-up warnings based on updated research(17) or its failure to recall products determined to be dangerous after initial registration, labeling, and distribution may not be preempted if the claims do not attempt to impose labeling or packaging requirements that are additional to, or different from, those imposed by the EPA.(18)

Significantly, a narrow reading of the breadth of FIFRA preemption seems warranted in light of FIFRA's uniformity provision, which, unlike the 1969 Cigarette Act, extends only to labeling and packaging and does not broadly cover general advertising and promotional materials. This distinction, along with FIFRA's express reservation of state regulatory authority in subdivision 136v(a), counsels a narrower application of FIFRA's mandate than that of the 1969 Cigarette Act.

In light of the text of the limited preemption provision of FIFRA, its express reservation of state authority over sale and use, and the decisions of the Supreme Court and many appellate courts, the following theories of tort recovery are likely not preempted by FIFRA:

* Claims based on improper or inadequate warnings to those who work with pesticides in cases where literature that advertises the pesticides differs from the label;(19)

* Claims based on manufacturers' failure to restrict sales to nonprofessionals;

* Claims based on failure to warn that pesticides have been contaminated outside the regular course of production;(20)

* Claims based on a design defect: The product fails to perform as safely as an ordinary consumer would expect (the consumer expectations test) or, alternatively, the relevant benefits and social utility of the product are outweighed by its risks and its hazards (the risk/benefit test);(21) and

* Claims based on negligent design, testing, and manufacturing.(22)

While the following claims are either subject to a split in authority or have not been reviewed by the courts, there is substantial weight for the proposition that they should not be preempted:

* Claims based on breach of express warranties;(23)

* Claims based on a manufacturing defect(24) or a contaminant that causes a result that differs from the one the manufacturer intended;

* Claims based on improper follow-up warnings in cases in which the manufacturer is put on notice of new information following the initial registration, labeling, and distribution of the product;

* Claims based on an improper failure to recall a product;

* Claims based on fraud, deceit, or negligent misrepresentation, whether based on representations to the purchaser or user, or to regulatory bodies that approved and registered the label. (A plaintiff bringing this type of claim cannot merely assert that the label omitted important information, as doing this might violate FIFRA's mandate of labeling uniformity. Rather, a plaintiff would need to show that a manufacturer either deliberately misled the EPA during the label registration process or issued misleading literature apart from the product label.);(25) and

* Claims based on breach of a FIFRA-created duty. (Some courts have held that states can elect to recognize a claim for the breach of a FIFRA-created duty.(26) Other courts have declined to recognize these claims.(27))

In cases in which there was a long latency period between exposure to the toxic substance and the manifestation of injury, the victim may have been exposed before November 1972--the effective date of FIFRA's mandate of labeling and packaging uniformity.(28) Evidence of this may be a complete bar to the assertion of FIFRA preemption as a defense.

In Cipollone, the Supreme Court held that failure to warn claims arising from cigarette advertisements published before the 1969 amendments to the Cigarette Act were not preempted.(29) Similarly, tort claims arising from an exposure to pesticides or herbicides before the effective date of FIFRA's uniform labeling mandate should not be preempted.

Manufacturers, however, may point to cases that do provide a basis for preempting pre-1972 failure to warn claims.(30) These cases hold that because FIFRA mandates that states shall not "continue in effect" any labeling or packaging requirements different from, or in addition to, those required by the EPA, the courts should conclude that maintenance of a failure to warn claim based on pre-1972 labels violates FIFRA's preemption clause. In view of Cipollone's differentiation between the 1969 Cigarette Act and its predecessor, and its conclusion that the 1969 act did not preempt pre-1969 tort claims, a conclusion that a warning case based on a pre-1972 exposure would be preempted by FIFRA is somewhat at odds with Cipollone.

Imposing liability for products already banned by the EPA because they were not safe when used as directed does not appear to interfere with any federal scheme; there is no interference with a currently valid label protected by Congress. Although this argument has apparently not been addressed in any reported decision, it should be asserted in any current case involving banned products, particularly if the use occurred after initiation of the process that caused the product's ban.

Crafting Complaints

Complaints that assert only failure to warn claims against the manufacturers of FIFRA-registered products are the most easily attacked by a FIFRA-based motion.(31) Accordingly, a plaintiff's lawyer should immediately determine if the product is or was registered under FIFRA. The lawyer should then promptly seek leave to amend the complaint to assert any applicable theories of recovery listed above. The lawyer should not wait for the manufacturer to take the initiative--FIFRA preemption will probably be asserted among other affirmative defenses in the manufacturer's answer, and defense counsel often wait for the close of discovery to spring the preemption trap.

Any plaintiff confronted with a motion for summary judgment based on FIFRA preemption should immediately seek leave to amend. In some courts the period of notice for a motion to amend the complaint is shorter than the notice period for a summary judgment motion. Therefore, the fact that the manufacturer has beaten a plaintiffs' attorney to the punch may not prevent the lawyer from calendaring a motion for leave to amend before the hearing of the manufacturer's summary judgment motion.

It is important for the plaintiffs' lawyer to seek leave to amend rather than take the time needed to assert new facts and theories of recovery to oppose a motion for summary judgment. This is because in many jurisdictions the moving party on a motion for summary judgment need only defeat the allegations of the existing complaint.

A plaintiffs' attorney does not want to be in the unenviable position of waiting to seek leave to amend until after a summary judgment has been granted as to the entire complaint. The potential procedural problems in that event (including statute of limitations) could be significant. The safe bet is to seek leave to amend in a motion filed in conjunction with an opposition to the motion for summary judgment. This way, an appropriate affidavit claiming the need for additional discovery to oppose the motion for summary judgment would be better received by the court.

Because a good argument can be made that failure to warn claims arising from exposures before the effective date of FIFRA's uniform labeling provision should not be preempted, plaintiffs' lawyers should reexamine the evidence. If the evidence reveals that the plaintiff was exposed to the product before November 1972, plaintiff's counsel should tell the court about this in either the plaintiff's response to the manufacturer's separate statement in support of a motion for summary judgment or in the plaintiff's statement of additional facts in dispute.

The lawyer will need to tie this evidence to Cipollone's holding that claims arising from advertisements before the 1969 Cigarette Act are not preempted, and request an analogous ruling by the court under FIFRA.

A manufacturer has the burden of proof on a summary judgment motion based on FIFRA. The motion cannot be granted unless the facts underlying the preemption defense are supported by admissible evidence. In most jurisdictions, a motion for summary judgment must be denied, without any reference to the opposition, if the moving party fails to satisfy its substantive burden in presenting the motion.

Competent evidence should be presented to the court showing that (1) the precise product involved in the case was registered by the EPA or the USDA, (2) the product's label and package were approved, and (3) the label and package relate to the specific product involved in the case. Also, the actual approved package and approved label should be shown.

Therefore, the moving party must offer in evidence authentic copies of the labels that were affixed to the product's containers and should ask the court to take judicial notice of the administrative order(s) constituting registration of the product, and approval of its labels, throughout the entire period of the alleged exposure.

An affidavit stating merely that a product has been registered is probably hearsay and a legal conclusion based on the affiant's review of documents. This arguably violates the best evidence rule, because the final acts of product and label registration are purely documentary events, like recordation of a deed, entry of a final judgment, or the signing of a contract.

Plaintiff's counsel should object to any unsupported hearsay affidavits and demand authenticated copies of registered labels and EPA orders of registration for the product's containers during the entire period of exposure.

This litigation tactic will compel the manufacturer's production of product labels, which often contain express warranties concerning the contents of the product package. These express warranties may prove to be the basis of a preemption-proof claim.

For example, the authors recently handled a dioxin wrongful death case against an herbicide manufacturer. The product at issue was a derivative of Silvex [2 (2,4,5-Trichlorophenoxy) propionic Acid]. FIFRA registration for roadside use of this product was suspended in 1979 because it was allegedly contaminated with dioxin.(32)

The product labels ultimately offered by the defendant in support of its motion for summary judgment contained the following express warranty: "NOTICE: Seller warrants that the product conforms to its chemical description and is reasonably fit for the purposes stated on the label...."

This express warranty that the product conformed to its chemical description suggests that the alleged dioxin contamination might constitute a breach of express warranty. Moreover, plaintiffs' attorneys could argue that the label was evidence that the manufacturer did not intend the product to contain dioxin, which is an element of a manufacturing defect claim.(33)

Plaintiff's counsel should also present evidence, if possible, that the registration of the product, its particular use(s), or its label was suspended or canceled for health or safety reasons. This makes any public policy arguments in favor of FIFRA preemption of tort remedies less compelling.

Evidence that the registrant hid information from or misrepresented information to the EPA would support a fraud claim. Courts are less likely to grant immunity in an administrative hearing to manufacturers that have committed fraud.

Of course, proving fraud in the registration process can be a formidable task. This can require examination of EPA agency files and correspondence, but a fraud claim may be appropriate in the right case.(34)

FIFRA preemption is a potent, but not airtight, defense for product manufacturers. Numerous theories of recovery remain viable, notwithstanding registration of a product under FIFRA.

The litigation strategies discussed in this article should help plaintiffs' lawyers keep their toxic tort cases on track when a manufacturer hits them with a summary judgment motion. Manufacturers often talk as if FIFRA is the end of a case for damages caused by a FIFRA-registered product, but, as this article shows, it is not.

Notes

(1)7 U.S.C. [sections]136 (1988). Under the definitions provided in the statute, the term "pesticide" includes herbicides. 7 U.S.C. [sections]136(t), (u) (1988).

(2)7 U.S.C. [sections]136 d(b) (1988). 7 U.S.C. [sections]136 (bb) provides: "The term 'unreasonable adverse effects on the environment' means any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide."

(3)501 U.S. 597 (1991).

(4)Id. at 607-08.

(5)Other courts before Mortier had held that FIFRA does not preempt local or state regulation of pesticide use. See, e.g., People ex rel. Deukmejian v. County of Mendocino, 683 P.2d 1150 (Cal. 1984) (en banc); Chemical Specialties Mfrs. Ass'n v. Allenby, 958 F.2d 941, 947 (9th Cir.), cert. denied, 113 S. Ct. 80 (1992).

(6)U.S. CONST. art. VI, cl. 2.

(7)Mortier, 501 U.S. 597, 605 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

(8)Cipollone, 112 S. Ct. 2608, 2617-18 (1992) (citations omitted, bracketed material added); cf. Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995) (holding that an express preemption clause does not preclude a possibility of implied preemption).

(9)112 S. Ct. 2608, 2620.

(10)The Supreme Court noted that each claim must be examined separately to determine whether it is preempted and that claims for breach of express warranty, fraudulent misrepresentation, fraudulent concealment, negligent testing and research, and conspiracy to conceal material facts are not categorically preempted by the 1969 Public Health Cigarette Smoking Act. Id. at 2621-24.

(11)E.g., Papas v. Upjohn Co. (Papas I), 926 F.2d 1019 (11th Cir. 1991), vacated, remanded, 112 S. Ct. 3020 (1992); Papas v. Upjohn Co. (Papas II), 985 F.2d 516 (11th Cir.), cert. denied, 114 S. Ct. 300 (1993); Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 959 F.2d 158 (10th Cir.), vacated, remanded, 113 S. Ct. 314 (1992), subsequent opinion on remand 981 F.2d 1177 (10th Cir.), and cert. denied, 114 S. Ct. 60, 60-61 (1993); King v. E.I. Dupont de Nemours & Co., 996 F.2d 1346 (1st Cir.), cert. dismissed, 114 S. Ct. 490 (1993); Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.), reh'g en banc denied, 1993 U.S. App. LEXIS 17385 (7th Cir. July 13, 1993); Lowe v. Sporicidin Int'l, 47 F.3d 124 (4th Cir. 1993). But see Higgins v. Monsanto Co., 862 F. Supp. 751, 757 (N.D.N.Y. 1994).

(12)804 F. Supp. 1298 (D. Mont. 1992).

(13)Id. at 1301. A pre-Cipollone federal circuit court case, Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1524-43 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984), found no preemption of common law tort remedies under FIFRA, but its rationale--that tort remedies are not regulations or requirements--may not survive the Cipollone decision.

(14)Cipollone, 112 S. Ct. 2608, 2621.

(15)Id. at 2622. See generally note 7. As a general proposition, a state law damages claim that does not challenge the content of a pesticide's registered label or package does not interfere with FIFRA. Compliance with FIFRA and payment of a damages award is not a physical impossibility and does not interfere with the regulatory scheme.

(16)Higgins, 862 F. Supp. 751, 759 (quoting Cipollone, 112 S. Ct. 2608, 2621); see Bingham v. Terminix Int'l Co., L.P., 850 F. Supp. 516, 521 (S.D. Miss.), partial summary judgment granted, 158 F.R.D. 97 (S.D. Miss. 1994).

(17)FIFRA imposes a duty on registrants to provide updated information. 7 U.S.C. [sections]136d(a)(2) (1988). Whether a tort action premised on a manufacturer's failure to update information is preempted appears to be an open question.

(18)7 U.S.C. [sections]136v(b) (1988). See generally Cipollone, 112 S. Ct. 2608, 2621-22.

(19)Lowe, 47 F.3d 124, 130. FIFRA does not preempt failure to warn claims in advertising pesticides where the advertisements conflict with the labels.

(20)Miller v. E.I. Dupont de Nemours & Co., No. 4:93-CV-26 (L)(N), 1994 U.S. Dist. LEXIS 19926, at *10 (S.D. Miss. Nov. 28, 1994); In re Dupont-Benlate Litig., 859 F. Supp. 619, 623 (D.P.R. 1994).

(21)Higgins, 862 F. Supp. 751, 759 (claims based on a design defect are not preempted by FIFRA); Fisher v. Chevron Chem. Co., 716 F. Supp. 1283, 1289 (W.D. Mo. 1989); Kennan v. Dow Chem. Co., 717 F. Supp. 799, 812 (M.D. Fla. 1989). Some courts have failed to make a distinction between design defects that relate to failure to warn and those that do not. As a result, it is critical to remember that the plaintiff's allegations must do this. See generally Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.), reh'g en banc denied, 1993 U.S. App. LEXIS 17385 (7th Cir. July 13, 1993); Worm v. American Cyanamid Co. (Worm II), 5 F.3d 744 (4th Cir. 1993); King, 996 F.2d 1346.

(22)See Higgins, 862 F. Supp. 751, 757; Worm II, 5 F.3d 744, 747; Williams v. State, 640 So. 2d 365, 368 (La. Ct. App. 1994). The Ninth Circuit held that claims based on negligent testing or research that are related to advertising or promotion are preempted. Taylor AG Indus. v. Pure Gro, No. 93-16852, 1995 U.S. App. LEXIS 9150 (9th Cir. Apr. 24, 1995).

(23)Higgins, 862 F. Supp. 751, 760; Sowers v. Johnson & Johnson Medical, Inc., 867 F. Supp. 306, 313-14 (E.D. Pa. 1994); Kenepp v. American Edwards Labs., 859 F. Supp. 809, 817 (E.D. Pa. 1994). See generally Cipollone, 112 S. Ct. 2608, 2622-23. But see Grenier v. Vermont Log Bldgs., Inc., No. 91-40115-NMG, 1994 U.S. Dist. LEXIS 13652, at *8-9 (D. Mass. 1994); Taylor AG Indus., 1995 U.S. App. LEXIS 9150 (holding that express warranty claims that do not allege warranty arising independently of the product label are preempted). But note that every court to consider the issue of implied warranties has held that they are preempted. See, e.g., Kenepp, 859 F. Supp. 809, 814-15; Grenier, 1994 U.S. Dist. LEXIS 13652, at *8. The authors would argue that implied warranties for fitness for an intended use that arise during the bargaining process due to recommendations made by the seller may not be derived from the product label and therefore may not be preempted.

(24)In re Dupont-Benlate Litig., 859 F. Supp. 619 (holding that claims based on manufacturing defects are not preempted); Eppler v. Ciba-Geigy Corp., 860 F. Supp. 1391, 1395 n.5 (W.D. Mo. 1994). Also, the U.S. District Court for the Northern District of Alabama has held that a claim under the Alabama Extended Manufacturer's Liability Doctrine is preempted by FIFRA. Pitts v. Dow Chem. Co., 859 F. Supp. 543, 551 (N.D. Ala. 1994).

(25)However, Worm II held that the plaintiff's false representation claim was preempted where the manufacturer's promotional materials were identical to, and could not be differentiated from, the EPA-approved labels. 5 F.3d 744, 748; see also Taylor AG Indus., 1995 U.S. App. LEXIS 9150. But see In re Dupont-Benlate Litig., 859 F. Supp. 619, 623-24.

(26)Worm II, 5 F.3d 744, 748; Lowe, 47 F.3d 124, 139-30. For example, the Lowe court held that FIFRA creates a duty for manufacturers not to create advertisements that substantially differ from the claims filed with the EPA during the registration process. The Lowe court held that a state may impose common law liability for a manufacturer's failure to abide by this FIFRA-created duty. See also Worm v. American Cyanamid Co. (Worm I), 970 F.2d 1301, 1309 (4th Cir. 1992).

(27)Miller, 1994 U.S. Dist. LEXIS 19926, at *16 (holding that FIFRA preempts claims for inadequate point-of-sale warnings because they are based on inadequate product labeling); Rodriguez v. American Cyanamid Co., 858 F. Supp. 127 (D. Ariz. 1994). The Miller court reasoned that FIFRA never intended to create a private right of action. Thus, any alleged violation of that statute cannot provide a basis for a statutorily created duty. Miller, 1994 U.S. Dist. LEXIS 19926, at *16.

(28)For example, the relevant epidemiological literature suggests an average latency period in excess of 20 years between exposure to a dioxin-contaminated herbicide like 2,4,5-T and the onset of cancer. Marilyn Fingerhut et al., Cancer Mortality in Workers Exposed to 2,3,7,8 tetrachlorodibenzo-p-dioxin, 213 N. ENG. J. MED. 212 (1991).

(29)Cipollone, 112 S. Ct. 2608, 2621.

(30)Arkansas-Platte & Gulf Partnership, 959 F.2d 158, 159-61; Kennan, 717 F. Supp. 799, 811.

(31)For example, in Louisiana-Pacific Corp. v. Koppers Co., 38 Cal. Rptr. 2d 257 (Ct. App. 1995), the plaintiff apparently based all theories of recovery (products liability and indemnity) on the limited assertion that the manufacturer had failed to adequately warn about the safe application, use, and disposal of Noxtane, a wood preservative. While other theories of recovery are not always warranted, and may not have been warranted in that case, the absence of other allegations left the complaint open to summary judgment attack.

(32)44 Fed. Reg. 15874, 15897 (1979).

(33)Cipollone held that warranties are voluntarily included by a manufacturer and are not imposed by state law. 112 S. Ct. 2608, 2622-23. Worm II, on the other hand, held that the express warranties contained on the defendant's labels were mandated by FIFRA and that no state damages action could be predicated on them. 5 F.3d 744, 748-49. This conclusion is odd, to say the least. A consumer suing for breach of warranty is not seeking to impose additional or different labeling requirements. Rather, the consumer is merely seeking damages resulting from a manufacturer's breach of contract.

(34)See, e.g., Burke v. Dow Chem. Co., 797 F. Supp. 1128, 1140-41 (E.D.N.Y. 1992).

RELATED ARTICLE: ATLA Section Provides STEPping Stones for Members

The Section on Toxic, Environmental, and Pharmaceutical Torts is designed to support member attorneys who represent people harmed by pollution or the unsafe manufacture or use of medical, pharmaceutical, or chemical products.

Gerson Smoger, the 1994-95 section chair, says ATLA members new to the fields of law addressed by STEP--and veteran lawyers as well--have a lot to gain from the section.

Among the membership benefits are the availability of case-specific information, publications, education programs, and opportunities to network with other lawyers.

For example, an attorney who has never handled a case against a pharmaceutical giant may need help building a case against the defendant. Attorneys who have filed suits against the same manufacturer usually are willing to exchange information, offer tips on discovery techniques, or recommend expert witnesses to their ATLA comrades, Smoger said.

Members receive a directory of addresses and telephone and fax numbers of fellow members to make important contacts. Exchange Plus at ATLA headquarters has made this information network even easier to tap by creating the Document/Brief Bank. The bank is a database containing briefs and other court documents like complaints, depositions, and jury instructions from recent cases, which will help STEP members in their day-to-day work.

Another way STEP receives and disseminates information is through state captains, said James Browne, cochair of STEP's state captain's committee and an attorney in Oklahoma City. Browne, the immediate past chair of STEP, said at least two section members are designated as captains in each state. Some of their duties include recruitment of new section members and the facilitation of information exchange between state trial lawyers' associations and ATLA and among STEP members.

STEP also publishes a quarterly newsletter to keep members up to date on legal developments in related fields of law. The section presents an extensive education program at ATLA's convention each summer. This year, the program will focus on the effects of toxic chemicals and pharmaceuticals on children.

For more information, contact Sections Coordinator Lynn Gewessler at [phone], ext. 312. To join, call the Membership Department at [phone]. Dues are $25 a year.