ELR Citation: ELR 20613
No(s). 89-3752 (11th Cir. Mar 8, 1993)

The court, on remand from the U.S. Supreme Court, holds that §136v of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempts the state common-law claims made by a worker and his wife against manufacturers of pesticides registered by the U.S. Environmental Protection Agency (EPA) to the extent that the state-law actions are predicated on claims of inadequate labeling or packaging. The district court dismissed the worker's claim, the court of appeals affirmed, but the U.S. Supreme Court vacated and remanded for further consideration in light of the Supreme Court's decision in Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992), in which the Court analyzed the preemptive effect of the Federal Cigarette Labeling and Advertising Act.

The court first notes that in light of Cipollone, it will determine FIFRA's preemptive effect on the worker's claims under the express preemption doctrine, and will only identify the domain expressly preempted by FIFRA §136v. The court holds that to the extent that state-law actions for damages depend on a showing that a pesticide manufacturer's labeling and packaging failed to meet a standard in addition to or different from FIFRA requirements, §136v preempts the claims. The court holds that Cipollone instructs that the term "requirements" in §136v(b) sweeps broadly and suggests no distinction between positive enactments and the common law. Thus, common-law damages awards are "requirements" within the meaning of §136v. Each of the worker's negligence, strict liability, and breach of implied warranty counts alleges that the pesticide manufacturer failed to warn users that its product contained certain harmful chemicals and failed to inform users to take appropriate precautionary measures. Those allegations, like the failure to warn claims in Cipollone, require the finder of fact to determine whether, under state law, the manufacturer adequately labeled and packaged its product, which is precisely the inquiry that §136v forbids. Thus, to the extent that the worker's claims require a showing that the manufacturer's labeling or packaging should have included additional, or more clearly stated, warnings, those claims are preempted.

The court next holds that FIFRA precludes states from policing manufacturers' compliance with the federal procedures for labeling and packaging. The worker challenged the manufacturer's failure to disclose to EPA that its product contained benzene, which the worker alleged subjects the manufacturer to an EPA enforcement action for "misbranding." The court holds that it is for the EPA Administrator, not a jury, to determine whether labeling and packaging information is incomplete or inaccurate, and if so what label changes, if any, should be made. States may not interfere with the methods designed by Congress to achieve FIFRA's goals.

The court further holds that because the worker's claims challenging the adequacy of warnings on materials other than the label or package of a product, such as point-of-sale signs, consumer notices, or other informational materials, necessarily imply that the labeling and packaging failed to warn the user, such claims are preempted by FIFRA. If a pesticide manufacturer places EPA-approved warnings on the label and packaging of its product, its duty to warn is satisfied and the adequate warning issue ends.

Finally, the court holds that to the extent that an implied warranty claim depends on inadequacies in labeling or packaging, FIFRA §136v preempts the claim. The worker argued that the Supreme Court's ruling in Cipollone that the express warranty claims in that case were not preempted by the Federal Cigarette Labeling and Advertising Act mandates a finding in this case of no preemption on his breach of implied warranty claim. The court holds that the worker's implied warranty claim is a requirement imposed under state law, which FIFRA preempts. Express warranty claims are not imposed under state law, but rather are imposed by the warrantor, typically in sales contracts. In essence, when plaintiffs argue that an implied warranty obligates a seller, plaintiffs acknowledge that the seller did not volunteer for the liability. Thus, if the pesticide manufacturer were to have liability for breach of an implied warranty of merchantability, that liability would not be self-inflicted, but would be based on a requirement imposed by state law. The court concludes that claims that do not challenge the pesticide manufacturer's labeling and packaging practices are not preempted by FIFRA.

[The court's previous decision is published at 21 ELR 20898.]

Counsel for Plaintiffs-Appellants
Lee Haramis
Kirschner & Main
P.O. Box 1559, Jacksonville FL 32201
(904) 354-4141

Counsel for Defendants-Appellees
Lawrence Ebner
McKenna & Cuneo
1575 I St. NW, Washington DC 20005
(202) 789-7727

Before ANDERSON and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge.