                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-2381

                   ERNEST L. KING, SR., ET AL.,

                     Plaintiffs, Appellants,

                                v.

           E.I. DUPONT DE NEMOURS AND COMPANY, ET AL.,

                      Defendants, Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                     

                                           

                              Before

                       Breyer, Chief Judge,
                                          
                 Friedman,* Senior Circuit Judge,
                                                
                    and Stahl, Circuit Judge.
                                            

                                           

  James F. Freeley, III  with whom James F. Freeley, Jr. and Freeley
                                                                    
&amp; Freeley were on brief for appellants.
       
  George S.  Isaacson with  whom Peter  D. Lowe,  Brann &amp;  Isaacson,
                                                                   
Charles A. Harvey, Jr., Christopher D. Byrne, Verrill &amp; Dana, Peter J.
                                                                    
Rubin, Diane S.  Lukac, and Bernstein, Shur,  Sawyer &amp; Nelson were  on
                                                           
brief for appellees.

                                           

                           July 7, 1993
                                           

                   
*Of the Federal Circuit,  sitting by designation.

FRIEDMAN,  Senior  Circuit Judge.   The  issue  in this  case, on
                                

appeal  from the United States District Court for the District of

Maine, 806 F. Supp. 1030 (D. Me. 1992), is whether the  

Federal Insecticide,  Fungicide and  Rodenticide Act (FIFRA)  , 7

U.S.C.    136-136y (1988), preempts  state tort law claims  based

upon the  alleged failure of  the manufacturers of  herbicides to

provide adequate warning language  on the products' labels, which

the Environmental Protection Agency  (EPA) approved in accordance

with FIFRA's  requirements.  The  district court held  that FIFRA

preempts those state law claims.  We affirm. 

                                I

             The  plaintiffs, King  and Higgins  (and their wives)

filed this diversity tort  damage suit against four manufacturers

of chemical  herbicides.  Their second  amended complaint alleged

that, as part of their duties as employees of the State of Maine,

King  and  Higgins  were engaged  in  the  "seasonal spraying  of

chemical  herbicides";  that  "[d]uring  the   chemical  spraying

operations [they]  performed," King and Higgins  "were exposed to

significant   amounts"   of    specified   "chemical    products"

manufactured by the  defendants; and that, "as  the direct result

of  their exposure  to  the herbicides,"  King  and Higgins  have

suffered various ailments.  

             The complaint contained two counts.  Count I  charged

the defendants with negligence  because they "failed to warn  the

Plaintiffs .  . .  of  the harm  and danger  of  exposure to  the

chemical  products listed  above, failed  to  advise them  how to

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                                2

safely use the products and failed to warn them of the long term,

permanent physical  injuries which  would follow  said exposure."

Count  II alleged strict liability and  tort theories, based upon

the  defendants  having  "placed  into  the  stream  of  commerce

unreasonably dangerous and defective chemical  products, rendered

unreasonably dangerous by the  absence of an adequate warning  to

the  ultimate consumers and users  thereof of the  short term and

long  term permanent  physical injuries  resulting from  exposure

thereto."   At oral  argument, the  plaintiffs admitted  that the

sole basis  of their  complaint  was the  defendants' failure  to

provide adequate warnings.

             The parties  stipulated that  the labels  on all  the

herbicides involved  had been  submitted to  and approved by  the

EPA, as FIFRA required.  

             The  district court  granted the  defendants'  motion

for   summary  judgment,   holding  that   FIFRA  preempted   the

plaintiffs' claims.  806 F. Supp. at 1037.   The court, following

the preemption  standards the Supreme Court  applied in Cipollone
                                                                 

v. Liggett Group, Inc., 112 S. Ct. 2608, 2617 (1992), held:
                      

                  Because the  language of FIFRA
                  mandates the preemption of the
                  establishment  or  enforcement
                  or  any  common law  duty that
                  would   impose   a    labeling
                  requirement  inconsistent with
                  those established  by the Act,
                  or   the   EPA's  regulations,
                  Plaintiffs' common law failure
                  to  warn claims  are preempted
                  as a matter of law.  
806 F. Supp. at 1037.

                                II

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                                3

             A.   FIFRA provides a detailed  scheme for regulating

the content of an  herbicide's label.  All herbicides sold in the

United States must be registered for use by the EPA.   7 U.S.C.  

136a(a).     The  EPA   has  promulgated  comprehensive  labeling

requirements governing the scope,  content, wording and format of

herbicide  labeling.  40 C.F.R.    156 (1992).   The manufacturer

itself  designs and formulates the content of the label, and must

file with  the EPA a  statement which  includes "the name  of the

pesticide,"  "a complete copy of the labeling of the pesticide, a

statement of all claims to be made for it and  any directions for

its  use,"  and "a  full description  of the  tests made  and the

results  thereof upon which  the claims are  based."  7  U.S.C.  

136a(c)(1)(B)-(D).

             Section 136v provides in pertinent part:

                  (a) In  general.  A  State may
                  regulate  the  sale or  use of
                  any    federally    registered
                  pesticide  or  device  in  the
                  State, but only if and  to the
                  extent the regulation does not
                  permit   any   sale   or   use
                  prohibited by this subchapter.

                  (b)  Uniformity.   Such  State
                  shall  not impose  or continue
                  in effect any requirements for
                  labeling   or   packaging   in
                  addition to  or different from
                  those   required   under  this
                  subchapter.

Id.   136v.
  

             B.   Cipollone  recently  summarized  the   standards
                           

governing preemption analysis:

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                                4

                  The purpose of Congress is the
                  ultimate  touchstone  of  pre-
                  emption analysis.

                       Congress'  intent may  be
                  explicitly   stated   in   the
                  statute's      language     or
                  implicitly  contained  in  its
                  structure and purpose.  In the
                  absence    of    an    express
                  congressional  command,  state
                  law is pre-empted if  that law
                  actually     conflicts    with
                  federal law, or if federal law
                  so   thoroughly   occupies   a
                  legislative  field as  to make
                  reasonable the  inference that
                  Congress left no room  for the
                  States to supplement it.

Cipollone, 112 S. Ct. at  2617 (citations and internal quotations
         

omitted).

             Cipollone  involved similar  preemption provisions of
                      

the   federal   statutes   governing   cigarette   labelling  and

advertising.   The suit concerned a woman who died of lung cancer

after smoking for many years.  It was a state  tort law diversity

suit  against  the cigarette  manufacturers,  charging  them with

responsibility for  her death because, among  other things, "they

failed to warn  consumers about the hazards of smoking."   Id. at
                                                             

2613.    The  defendants  contended that  the  Federal  Cigarette

Labelling and Advertising Act  (1965 Act), Pub. L. No.  89-92, 79

Stat. 282 (1965) (codified  as amended at 15 U.S.C.     1331-1340

(1988)), and  its successor, the Public  Health Cigarette Smoking

Act of  1969 (1969 Act), Pub.  L. No. 91-222, 84  Stat. 87 (1969)

(codified as amended  at 15 U.S.C.     1331-1340), preempted  the

claims.    Those  Acts  required  health  warnings  on  cigarette

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                                5

packaging,  but  barred  the  requirement  of  such  warnings  in

cigarette advertising. 

             Section  5 of  the 1965 Act,  captioned "Preemption,"

provided in relevant part:

                  (b)  No statement  relating to
                  smoking  and  health shall  be
                  required in the advertising of
                  any cigarettes the packages of
                  which    are    labeled     in
                  conformity with the provisions
                  of this Act.

Federal  Cigarette  Labelling  and  Advertising  Act,  quoted  in
                                                                 

Cipollone, 112 S. Ct. at 2616.
         

             The Court  held that this  provision "only pre-empted

state  and federal  rulemaking  bodies from  mandating particular

cautionary  statements and  did  not pre-empt  state law  damages

actions."  Cipollone, 112 S. Ct. at 2619 (footnote omitted).
                    

             This provision was changed by the 1969 Act to read:

                  (b)      No   requirement   or
                  prohibition  based on  smoking
                  and  health  shall be  imposed
                  under  State law  with respect
                  to    the    advertising    or
                  promotion  of  any  cigarettes
                  the  packages   of  which  are
                  labeled in conformity with the
                  provisions of this Act.

Public Health Cigarette Smoking Act of 1969, quoted in Cipollone,
                                                                

112 S. Ct. at 2616.  See also 15 U.S.C.   1334(b) (1988).
                             

             The  Court held  that  this provision  preempted  the

plaintiff's  state  law  tort  claims based  on  the  defendants'

failure to warn of the  hazards of cigarette smoking.  The  Court

stated  that  "[t]he  phrase  '[n]o  requirement  or prohibition'

                               -6-
                                6

sweeps  broadly  and  suggests no  distinction  between  positive

enactments and  common law; to  the contrary, those  words easily

encompass obligations  that take the  form of common  law rules."

Cipollone, 112  S.  Ct.  at 2620.    It,  therefore,  "reject[ed]
         

petitioner's   argument   that   the   phrase   'requirement   or

prohibition' limits the 1969  Act's pre-emptive scope to positive

enactments  by legislatures and agencies."   Id.   The Court held
                                               

that "insofar  as  claims under  either  failure to  warn  theory

require  a showing  that  respondents'  post-1969 advertising  or

promotions  should  have  included  additional, or  more  clearly

stated, warnings, those claims are pre-empted.  The Act does not,

however,  pre-empt  petitioner's  claims  that  rely  solely   on

respondents' testing  or  research  practices  or  other  actions

unrelated to advertising or promotion."  Id. at 2621-22.
                                           

             Only  four Justices  joined  in the  portion  of  the

opinion that held that the 1969 Act preempted the failure to warn

tort  claims.  In his opinion  concurring in the judgment in part

and dissenting in part (in which Justice Thomas joined), however,

Justice  Scalia  stated that  he  "agree[d]"  with the  following

statements  in the plurality opinion:  "that 'the language of the

[1969] Act plainly reaches  beyond [positive] enactments,';  that

the  general  tort-law  duties  petitioner  invokes  against  the

cigarette   companies   can,   as  a   general   matter,   impose

'requirement[s] or  prohibition[s]' within the meaning  of   5(b)

of the 1969 Act; and that the phrase 'State law'  as used in that

provision embraces  state common  law."  Id.  at 2634  (citations
                                           

                               -7-
                                7

omitted).    Justice  Scalia   also  referred  to  the  plurality

opinion's "correct disposition of petitioner's  post-1969 failure

to  warn claims."    Id.  at  2637.    Justice  Scalia's  partial
                       

disagreement  with the plurality was that he would have held that

the failure  to warn claims  under the  1965 Act and  all of  the

claims under the 1969 Act were preempted.  Id. at 2632.
                                             

             In these circumstances, the holding  in the plurality

opinion that  the 1969 Act preempted  the plaintiff's failure-to-

warn claim fairly can be said to constitute the view of the Court

because six members  of the Court  concurred in that  conclusion.

See Shaw  v. Dow Brands, Inc., No. 92-2323, 1993 WL 166324, at *6
                            

n.4 (7th Cir. May 18, 1993).

             The   Supreme  Court   itself   has   indicated  that

Cipollone  applies to  FIFRA preemption  determinations.   In the
         

Papas v.  Upjohn Co.  and Arkansas-Platte cases  discussed below,
                                         

the  Court  vacated two  courts of  appeals judgments  that FIFRA

impliedly preempted state law failure-to-warn claims and remanded

for  those  courts to  reconsider  their  decisions in  light  of

Cipollone.
         

             B.   We  hold  that,  in  light  of  Cipollone, FIFRA
                                                           

preempts  the plaintiffs'  state  law tort  claims  based on  the

defendants' alleged  failure to  provide adequate  warnings about

the health hazards of the herbicides they manufactured and sold.

             The warnings  on the  labels of  the herbicides  King

and Higgins used in spraying  were approved by the EPA, as  FIFRA

required.  If  the plaintiffs  could recover on  their state  law

                               -8-
                                8

claims that, despite this labeling, the defendants had failed  to

provide  adequate warning, those  additional warnings necessarily

would be "in addition  to or different from those  required under

this  subchapter."  7 U.S.C.   136v(b).  The question, therefore,

is whether state law liability based upon  such defective warning

would  constitute  the  "impos[ition]"   by  the  state  of  "any

requirements for  labeling or  packaging" under section  136v(b).

Id.
  

             Cipollone held that  the words in the 1969  cigarette
                      

statute  "'[n]o   requirement  or  prohibition'  .   .  .  easily

encompass[ed]  obligations  that  take  the form  of  common  law

rules."   Cipollone,  112 S.  Ct.  at 2620.   The  FIFRA language
                   

prohibiting the states from "impos[ing] or continu[ing] in effect

any   requirements,"   7   U.S.C.       136v(b),   is   virtually

indistinguishable from the  state-imposed "requirement"  language

that Cipollone held  preempted the state  common law tort  claims
              

based on inadequate warning.  FIFRA's language, too, preempts the

state law lack-of-warning claims involved in this case.

             The plaintiffs contend  that the reference in section

136v(b) to "Such  State" means the state  described in subsection

(a), namely, a state that has "regulate[d] the sale or use of any

federally registered  pesticide."  From this,  they conclude that

the prescription  provision of  subsection (b) covers  only state

regulation,  but not  state common  law claims.   Subsection (a),

however,  is a grant  of authority to the  states to regulate the

"sale or use" of pesticides, not a limitation upon the preemptive

                               -9-
                                9

effect of subsection (b).  The word "Such" in subsection (b) does

not  limit  to  state  regulation  the  state  "requirements  for

labeling or packaging" which that section preempts.

             The legislative  history  of the  1972 amendments  to

FIFRA, which  added  section 136v  to the  statute, supports  our

conclusion.   The Senate Committee Report on the provision stated

that  section 136v(b)  "preempts  any State  or local  government

labeling   or   packaging   requirements   differing   from  such

requirements under  the Act."  S. Rep.  No. 92-970, 92d Cong., 2d

Sess.  (1972), reprinted  in 1972 U.S.C.C.A.N.  4092, 4128.   See
                                                                 

also S. Rep. No. 92-838, 92d Cong., 2d Sess. 30 (1972), reprinted
                                                                 

in  1972 U.S.C.C.A.N.  3993,  4021 (the  provision "preempts  any
  

State  labeling  or packaging  requirements  differing from  such

requirements under the Act").  The House Committee Report stated:

"[i]n  dividing the  responsibility  between the  States and  the

Federal Government  for the management of  an effective pesticide

program,  the Committee has adopted language which is intended to

completely  preempt State  authority  in regard  to labeling  and

packaging."   H.R.  Rep.  No. 92-511,  92d  Cong., 1st  Sess.  16

(1971).  

             Our  conclusion  accords with  the  decisions  of the

three  courts of appeals that,  since Cipollone, have decided the
                                               

question.

             In Papas  v. Upjohn  Co., 926  F.2d  1019 (11th  Cir.
                                     

1991), the court held that FIFRA impliedly preempted state common

law claims  based  upon inadequate  labeling.   On  petition  for

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                                10

certiorari,  the  Supreme Court  vacated  the  court of  appeals'

judgment and remanded the case for further consideration in light

of Cipollone.   Papas,  112 S.  Ct. 3020 (1992).   On  remand the
                     

court of  appeals concluded that "FIFRA  expressly preempts state

common  law  actions  against  manufacturers   of  EPA-registered

pesticides to  the extent  that such  actions  are predicated  on

claims of inadequate  labeling or  packaging."   Papas, 985  F.2d
                                                      

516, 520 (11th Cir. 1993).  The court stated:

                  Section    136v(b)   pre-empts
                  those  of  the Papases'  state
                  law  claims  which  constitute
                  "requirements for  labeling or
                  packaging  in  addition to  or
                  different from" the  labelling
                  and   packaging   requirements
                  imposed      under      FIFRA.
                  Cipollone  convinces  us  that
                           
                  the  term   "requirements"  in
                  section     136v(b)    "sweeps
                  broadly   and   suggests    no
                  distinction  between  positive
                  enactments   and  the   common
                  law."  Cipollone, at     , 112
                                  
                  S.Ct.  at  2620.   Common  law
                  damages awards are one form of
                  state regulation and, as such,
                  are "requirements"  within the
                  meaning of section  136v.   To
                  the  extent   that  state  law
                  actions  for   damages  depend
                  upon   a    showing   that   a
                  pesticide       manufacturer's
                  "labeling or packaging" failed
                  to   meet   a   standard   "in
                  addition to or different from"
                  FIFRA   requirements,  section
                  136v pre-empts the claims.

Id. at 518 (citation omitted).
  

             In Arkansas-Platte  &amp; Gulf Partnership  v. Van Waters
                                                                  

&amp; Rogers,  Inc., 959 F.2d  158 (10th Cir.  1992), the court  also
              

                               -11-
                                11

held  that  "state tort  actions  based on  labeling  and alleged

failure  to warn are impliedly preempted by  FIFRA as a matter of

law."  Id. at 164.   On petition for certiorari the Supreme Court
         

vacated the judgment  of the  court of appeals  and remanded  for

that  court  to  reconsider  the  case  in  light  of  Cipollone.
                                                                

Arkansas-Platte,  113 S.  Ct. 314  (1992).   On remand  the court
               

"ADHERE[D]  to the  opinion  previously  announced."    Arkansas-
                                                                 

Platte,  981 F.2d 1177, 1179 (10th Cir. 1993), petition for cert.
                                                                 

filed, 61  U.S.L.W. 3789 (U.S. May 10,  1993) (No. 92-1784).  The
     

Court stated:

                  [T]he  common  law duty  is no
                  less  a  "requirement" in  the
                  preemption scheme than a state
                  statute   imposing  the   same
                  burden.  . .  .   [T]he common
                  law duty to warn  is subjected
                  to the same federal preemptive
                  constraints    as    a   state
                  statute. . . .   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 would be expressly
                  preempted.

Id.
  

             In Shaw,  1993 WL  166324, the  Seventh Circuit  held
                    

that FIFRA preempted  a state law claim  based on failure-to-warn

of the dangers of a chemical stain remover.  The court stated:

                  In  order  to  succeed in  the
                  wake of  Cipollone, then, Shaw
                                    
                  would   have   to  show   that
                  FIFRA's  pre-emption  language
                  is  less   sweeping  than  the

                               -12-
                                12

                  language of the 1969 Cigarette
                  Act.   Yet  we can  discern no
                  significant   distinction   at
                  all--FIFRA  says  that "[s]uch
                  State shall not  impose *  * *
                  any requirements  for labeling
                  or packaging in addition to or
                  different from  those required
                  *  * *,"  while the  cigarette
                  law says "[n]o  requirement[s]
                  or     prohibition[s]    * * *
                  imposed under State law" shall
                  be   permitted.     Both  seem
                  equally   emphatic:      "[n]o
                  requirements  or prohibitions"
                  is just another way  of saying
                  a  "[s]tate  shall not  impose
                  * * * any  requirements."  Not
                  even the  most dedicated hair-
                  splitter   could   distinguish
                  these  statements.   If common
                  law  actions  cannot   survive
                  under the  1969 cigarette law,
                  then  common  law actions  for
                  labeling and packaging defects
                  cannot survive under FIFRA.

Id. at *6.  
  

             C.   The  plaintiffs   rely  on  Ferebee  v.  Chevron
                                                                  

Chemical Co., 736 F.2d  1529 (D.C. Cir.), cert. denied,  469 U.S.
                                                      

1062  (1984).   There, the  plaintiff  became ill  and died  as a

result of his exposure  to an herbicide he sprayed.  In affirming

a jury verdict for the  plaintiff, the court held that FIFRA  did

not  preempt the plaintiff's state law tort claims based upon the

inadequacy of the  warning labels  on the herbicide.   The  court

reasoned that "Chevron can comply with both federal and state law

by continuing to use the EPA-approved label and by simultaneously

paying  damages  to  successful   tort  plaintiffs  such  as  Mr.

Ferebee."  Id. at 1541.
             

                               -13-
                                13

             In  deciding  Ferebee,  the   District  of   Columbia
                                  

Circuit  did  not  have  the   benefit  of  the  Supreme  Court's

subsequent analysis and ruling in Cipollone.  It is impossible to
                                           

predict  whether, in light of  Cipollone and the  other courts of
                                        

appeals'  decisions discussed  above,  the District  of  Columbia

Circuit would continue to follow Ferebee.  In any  event, for the
                                        

reasons  set  forth  in this  opinion,  we  do  not find  Ferebee
                                                                 

persuasive.

             Affirmed.
                     

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                                14
