ELR Citation: ELR 21282
No(s). 92-2381 (1st Cir. Jul 7, 1993)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state tort claims based on the alleged failure of herbicide manufacturers to provide adequate warnings on their products' labels. The court notes that the U.S. Environmental Protection Agency had approved the labels as FIFRA requires. The court finds that the language of FIFRA §24(b)'s prohibition on state imposition of labeling and packaging requirements that are in addition to or different from those required by FIFRA is virtually indistinguishable from the language in the Federal Cigarette Labelling and Advertising Act and the Public Health Cigarette Smoking Act that the U.S. Supreme Court held preempted state tort claims in Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992). In response to the plaintiffs' argument that the phrase such state" in §24(b) refers to a state described in §24(a), which has regulated the sale or use of any federally registered pesticide, the court holds that the word "such" in FIFRA §24(b) does not limit to state regulation the state requirements for labeling or packaging that §24(b) preempts. The court notes that its decision is supported by both the legislative history of the 1972 Amendments that added §24 and the decisions of the three courts of appeals that, since Cipollone, have decided the question.

[The district court's opinion is published at 23 ELR 20510.]

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

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