ELR Citation: ELR 20510
No(s). 90-0127-B (D. Me. Oct 23, 1992)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state common-law tort causes of action against chemical companies for failure to warn about safe and proper use of herbicides. The parties stipulated that the U.S. Environmental Protection Agency (EPA) had approved the product labels at issue under FIFRA. The court notes that FIFRA bars states from imposing requirements on herbicide labeling in addition to or different from EPA requirements. The court holds that FIFRA's prohibition of state requirements for additional labeling or packaging preempts expressly common-law damage actions for failure to warn in the herbicide labeling context, since the U.S. Supreme Court held in Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992), that the Public Health Cigarette Smoking Act of 1969, which prohibits states from imposing "requirements" on cigarette advertising, preempts common-law damage actions for inadequate warning. The court holds that the plaintiffs are also precluded from pursing their claim that the defendants failed to adequately label their products because the labels in question were approved by EPA under FIFRA. The court rejects the plaintiffs' argument that their claim encompasses warnings other than those contained in the products' labels because they have submitted no evidence of such a claim and previously admitted that their state-law claims for negligence and strict liability are based on the alleged inadequacy of the warnings on the defendants' products. Finally, the court rejects the plaintiffs' argument that their state-law claims are not preempted because state-law damage actions may not be preempted if they are based on failure to fulfill an obligation to disclose material facts. The plaintiffs' claims sound only in failure to warn and not fraudulent misrepresentation.

Counsel for Plaintiffs
James F. Freeley Jr.
Freeley & Freeley
One McKinley Sq., Boston MA 02109
(617) 523-5010

Counsel for Defendants
Charles A. Harvey Jr.
Verrill & Dana
One Portland Sq., P.O. Box 586, Portland ME 04112
(207) 774-4000