FIFRA preemption of common-law tort claims after Cipollone.

• Author: Pellikaan, Sandi L.
• Position: Federal Insecticide, Fungicide, and Rodenticide Act

1. 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issues, the Supreme Court begins "with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress."(13) Courts look to congressional intent, which may be "explicitly stated in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.

2. 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)

   1. 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...