ELR Citation: ELR 20995
No(s). 91-1085 (10th Cir. Mar 6, 1992)

The court rules that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) impliedly preempts state tort actions based on labeling and alleged failure to warn of environmental harm. An employee at a maniufacturing facility that had used a pentacholorophenol product from 1960 to 1972 was diagnosed as having pentachlorophenol poisoning. A partnership that succeeded the ownership of the property on which the facility was located brought claims against the manufacturers and distributors of the pentachlorophenol product for negligence and strict liability, based on a failure to warn of the product's environmental hazards. The court holds that a plain reading of FIFRA §24(b) indicates Congress' specific intent to occupy the field of labeling and packaging. The court holds that it need not consider whether to retroactively apply the 1972 amendments to the Act, because the partnership's claims arose after 1972. The company acquired its property in 1985, found the property contaminated in 1987, and filed suit in 1989. The court concludes that state court damage awards based on failure to warn would constitute ad hoc determinations of the adequacy of statutory labeling standards and thus would hinder the accomplishment of FIFRA §24(b)'s purpose of ensuring uniform labeling standards. Further, the court holds that the U.S. Supreme Court's decision in Wisconsin Public Intervenor v. Mortier, 111 S. Ct. 2476, which holds that Congress impliedly preempted state regulation in the area of labeling, is applicable, even though it is confined to pesticide regulation by local governments.

[The district court's opinion is published at 21 ELR 20479.]

Counsel for Plaintiff-Appellee
Richard B. Young
Holme, Roberts & Owen
102 N. Cascade Ave., Ste. 400, Colorado Springs CO 80903
(719) 473-3800

Counsel for Defendant-Appellant
David A. Bailey
Parcel, Mauro, Hultin & Spaanstra
1801 California St., Ste. 3600, Denver CO 80202
(303) 292-6400

C. Michael Montgomery
Montgomery, Green, Jarvis, Kolodny & Markusson
1050 17th St., Ste. 1700, Denver CO 80265
(303) 534-4800

Counsel for Amici Curiae
Lawrence S. Ebner
McKenna & Cuneo
1575 I St. NW, Washington DC 20005
(202) 789-7500

Before LOGAN and MOORE, Circuit Judges, and ALLEY, District Judge.^*