| | FIFRA preemption of common-law tort claims after Cipollone
by Sandi L. Pellikaan I. INTRODUCTION States have a fundamental right to protect their citizens. However, when a plaintiff alleges that a pesticide manufacturer failed to adequately warn of the dangers associated with its products, courts are increasingly concluding that such claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).(1) For example, in Yowell v. Chevron Chemical Co.,(2) the surviving spouse, child, and parents of William Yowell, who died as a result of exposure to pesticides manufactured by Chevron, were denied recovery because the court held that FIFRA preempted their negligence and strict liability Claims.(3) The Yowells' situation is unfortunate; if their case had been heard in Montana or New York, they might have recovered.(4) FIFRA prohibits sale or distribution of unregistered pesticides(5) and allows the Environmental Protection Agency (EPA) to entirely bar distribution and use of pesticides that will harm the environment.(6) A manufacturer wishing to register its pesticide must submit to EPA a statement which includes a copy of the proposed label, the formula of the pesticide, and a request that the pesticide be classified for general use, restricted use, or both.(7) If requested by EPA, a manufacturer must also provide EPA with descriptions and results of the tests performed on its product.(8) While FIFRA allows states to regulate the sale or use of federally registered pesticides,(9) it does not allow states to require packaging or labeling different from or in addition to the requirements imposed by EPA pursuant to FIFRA.(10) Federal preemption of state law is derived from the Supremacy Clause, which provides that the laws of the United States "shall be the supreme Law of the Land."(11) Thus, 'state law that conflicts with federal law is "without effect.'"(12) When considering Supremacy Clause issues, the Supreme Court begins "with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress."(13) Courts look to congressional intent, which may be "explicitly stated in the statute's language or implicitly contained in its structure and purpose,"(14) to determine whether a federal act preempts a state law.(15) Intent to preempt is implied either if state law "actually conflicts with federal law"(16) 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."(17) In the mid-1980s, pesticide manufacturers adopted a new approach to defending common-law tort claims based on a manufacturer's failure to adequately warn of the dangers associated with its product. Manufacturers argue that FIFRA's provision mandating that states not impose labeling requirements different from or in addition to EPA-approved labels preempts common-law damage awards because damage awards are, in essence, a state regulation of a pesticide's label. Since FIFRA preempts state law, including state common law, manufacturers conclude that FIFRA preempts common-law tort claims. Prior to the Supreme Court's ruling in Cipollone v. Liggett Group, Inc.,(18) courts were split as to whether FIFRA preempted state common-law tort claims based on a manufacturer's failure to adequately warn consumers of the dangers associated with its product.(19) Courts finding no preemption tended to follow the 'choice of reaction' test developed by the D. C. Circuit in Ferebee v. Chevron Chemical Co.(20) Richard Ferebee died from pulmonary fibrosis caused by his exposure to paraquat, a chemical distributed by Chevron.(21) The D.C. Circuit rejected Chevron's argument that imposing damages based on the inadequacy of federally mandated and approved warnings would have an adverse regulatory effect.(22) Specifically, Chevron contended that additional requirements would force manufacturers to use more thorough warnings than those approved by EPA, in conflict with the purpose of the act.(23) Noting that a jury award of damages does not force a manufacturer to change its label, the court set out the choices for a manufacturer held liable for damages under state law. According to the court's analysis, a manufacturer may: (1) petition EPA to alter its label; (2) discontinue selling its product in the state where the damages award was made; (3) distribute additional information about its product; or (4) continue to use the same label and pay damages to successful tort plaintiffs.(24) Underlying the court's analysis is the idea that, between a manufacturer and an injured party, the manufacturer should bear the cost for injuries that it could have prevented by providing a more detailed label.(25) Shortly after deciding Cipollone, the Supreme Court remanded two FIFRA cases, Papas ...
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