ELR Citation: ELR 20478
No(s). 91-1085 (10th Cir. Jan 5, 1993)

On remand from the U.S. Supreme Court, the court adheres to its previous opinion at 22 ELR 20995, in which it held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts landowners' state tort claims that a chemical manufacturer's label should have included additional, different, or alternatively stated warnings from those required under FIFRA. After remand by the U.S. Supreme Court to determine if Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992), a cigarette labeling case involving the preemptive nature of §5(b) of the Public Health Cigarette Smoking Act of 1969, affects the preemption issue in this case, the court ordered the parties to file briefs discussing the applicability of Cipollone.

The court observes that the Supreme Court's remand gave no specific direction in applying Cipollone. The court first holds that based on a comparison of the facts in Cipollone and the facts in this case, the only issue for consideration on remand is FIFRA's preemption of the state common-law labeling and duty to warn claims. Although the court previously held that pre-1972 law did not apply to this case, the fact that the Supreme Court's Cipollone decision took into account statutes that existed prior to Mrs. Cipollone's cancer diagnosis does not indicate that the Supreme Court disapproved of the court's analysis of when the landowners' claim arose. While Mrs. Cipollone started smoking and therefore was exposed to the consequences of tobacco smoke in 1942, which establishes a continuing claim from that date, the landowners' claim dates from 1987, when they came into possession of the contaminated property, not from when the contamination originally occurred. Moreover, nothing in Cipollone indicates that the Supreme Court decided when Mrs. Cipollone's claim arose.

Turning to the preemption issue, the court holds that Cipollone does not require a conclusion different than the court's previous decision, in which the court ruled that the labeling provisions in FIFRA §136v(b) preempt other labeling requirements. Although the words are different, the labeling provision of FIFRA §136v(b) is as inclusive as the provision in §5(b) of the Cigarette Smoking Act involved in Cipollone. FIFRA §136v(b) deprives states of power to adopt any regulation for labeling or packaging different from those required under FIFRA. Moreover, contrary to the landowners' argument that a congressional preemption of state law extends only to positive legislative acts, landowners' common-law duty to warn claim is subjected to the same federal preemptive constraints as a state statute. The court holds that to the extent that state tort claims in this case require a showing that defendants' labeling and packaging should have included additional, different, or alternatively stated warnings from those required under FIFRA, they are expressly preempted.

[Previous decisions in this litigation are published at 21 ELR 20479 and 22 ELR 20995.]

Counsel for Plaintiff/Appellee
Richard R. Young, Brent E. Rychener, Walter H. Sargent
Holme, Roberts & Owen
102 N. Cascade Ave., Ste. 400, Colorado Springs CO 80903
(719) 473-3800

Counsel for Defendants/Appellants
David A. Bailey, Dean R. Massey, Anne D. Weber
Parcel, Mauro, Hultin & Spaanstra
1801 California St., Ste. 3600, Denver CO 80202
(303) 292-6400

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