ELR Citation: ELR 20570
No(s). 93-CV-2342 (E.D. Pa. Nov 1, 1994)

The court holds that §24(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a nurse's state-law negligence, strict liability, and breach of implied warranty claims against manufacturers of a disinfectant that allegedly caused the nurse's respiratory illness. Relying on the U.S. Supreme Court's decision in Cipollone v. Liggett Group, Inc., 499 U.S. 935 (1991), the court first holds that FIFRA preempts state common-law actions. In Cipollone, the Court held that the Federal Cigarette Labeling and Advertising Act preempts state-law claims for failure to warn, inadequate labeling, and breach of implied warranty. The court finds no meaningful distinction between the language of §24(b), which prohibits states from imposing labeling or packaging requirements that differ from or add to FIFRA's requirements, and the provision at issue in Cipollone, which prohibited any requirement or prohibition imposed under state law.

The court thus holds that §24(b) preempts the nurse's claims, because if she were to prevail on any of her claims that the manufacturers failed to provide adequate warnings or labels, the additional warnings required would necessarily constitute labeling or packaging requirements "in addition to or different from" those EPA requires under FIFRA. The court rejects the nurse's argument that FIFRA's preemption is limited to "labels" and "labeling" and does not extend to claims based on unattached, nonaccompanying documents and statements such as the manufacturers' material safety data (MSD) sheets or their advertising or promotional material. The court concludes that because failure-to-warn claims based on the MSD sheets or advertising materials necessarily imply that U.S. Environmental Protection Agency-approved packaging or labeling failed to warn the user, FIFRA preempts them as well.

The court next holds that FIFRA does not preempt the nurse's express warranty claim, because FIFRA only prohibits a state from imposing the requirement in addition to or different from FIFRA's. The "requirements" imposed by an express warranty are not imposed under state law, but rather by the warrantor. The court, holds, however, that the nurses express warranty claim fails as a matter of law, because a company must direct an express warranty at consumers in order to induce purchases of the product. Because FIFRA requires the labels at issue, the court concludes that the labels were not directed at consumers, that inducing purchases was not their purpose, and that they were therefore not a part of the "basis of the bargain" between the manufacturers and potential buyers. The court notes that the manufacturers' MSD sheets contain specific warranty disclaimers, and finds no statements in the MSD sheets or the various promotional materials that could possibly constitute an express warranty as to product safety. Finally, the court dismisses the claim of the nurse's husband for loss of consortium because the manufacturers are entitled to summary judgment on all of the nurse's claims.

Counsel for Plaintiffs
Stuart J. Agins
Bernstein, Silver & Gardner
1600 Market St., Ste. 2500, Philadelphia PA 19103
(215) 864-9400

Counsel for Defendants
Bernard J. Smolens, Kevin A. Marks
Hoyle, Morris & Kerr
One Liberty PI., Ste. 4900, Philadelphia PA 19103
(215) 981-5700