
USCA1 Opinion

	




                            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            _____________________            _____________________     _______        & Freeley were on brief for appellants.        _________            George S.  Isaacson with  whom Peter  D. Lowe,  Brann &  Isaacson,            ___________________            ______________   _________________        Charles A. Harvey, Jr., Christopher D. Byrne, Verrill & Dana, Peter J.        ______________________  ____________________  ______________  ________        Rubin, Diane S.  Lukac, and Bernstein, Shur,  Sawyer & 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                                         -2-                                          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                                         -3-                                          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:                                         -4-                                          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                                         -5-                                          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                                         -10-                                          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  & Gulf Partnership  v. Van Waters                          __________________________________________________          & 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.                       ________                                         -14-                                          14
