Preemption in Products Liability Cases: An Analysis of Federal Product Preemption under FIFRA and Bates V. Dow Agrosciences

By Davis, William M.; Ryan, Elizabeth Haecker | Defense Counsel Journal, April 2007 | Go to article overview

Preemption in Products Liability Cases: An Analysis of Federal Product Preemption under FIFRA and Bates V. Dow Agrosciences


Davis, William M., Ryan, Elizabeth Haecker, Defense Counsel Journal


THE LANDSCAPE of federal preemption with respect to product liability claims recently underwent a significant shift when the United States Supreme Court decided Bates v. Dow Agrosciences (1) on April 27, 2005. While Bates specifically involved the Federal Insecticide, Fungicide and Rodenticide Act (2) ("FIFRA"), it has much larger ramifications for federal preemption in all cases involving state-law products liability claims where the products at issue are subject to comprehensive federal regulation.

To some consumer advocates, the decision was a "victory for fairness to individuals who are poisoned by toxic pesticides," (3) while some defense counsel have decried it as "a major disappointment for industry." (4) But those on both sides of the issue tend to agree that Bates was a somewhat surprising departure from what had previously appeared to be a rather settled point of law generally favoring preemption.

This article briefly examines the historical development of Supreme Court preemption jurisprudence--particularly in the area of products liability and toxic torts--with a specific focus on Bates and the impact it has had over the last two years.

A Brief History of Preemption

In the products liability arena, federal preemption effectively shifts the responsibility of ensuring that products are developed and manufactured safely. Instead of state courts being the primary arbiters of safety, the responsibility falls to federal administrative agencies. (5)

Generally, the "historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress." (6) In keeping with that sentiment, "'[t]he purpose of Congress is the ultimate touchstone'" (7) of preemption analysis.

Preemption may be either explicit or implicit. In Gade v. National Solid Wastes Group, Inc., (8) the Supreme Court recognized three instances in which federal law preempted state law: "explicit preemption;" and two sub-categories of implied preemption: "field preemption" and "conflict preemption."

Explicit preemption occurs where Congress's intent is to explicitly preempt state law, as when there is clear preemptive language contained within a statute. However, Congress need not explicitly state a purpose to preempt. (9) Thus it is possible for there to be implied preemption, which occurs in two scenarios (10) in the absence of a specific Congressional command: (1) when state law actually conflicts with federal law ("conflict preemption"); (11) or (2) when federal law so thoroughly occupies an area of the law "'as to make reasonable the inference that Congress left no room for the States to supplement it'" ("field preemption"). (12) Conflict preemption-which is most prevalent in the products liability arena--has generally been described by the Supreme Court as arising when "it is impossible for a private party to comply with both state and federal requirements or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (13)

A. Cipollone v. Liggett Group--The Dawn of Product Preemption

The first significant Supreme Court case which influenced the decisions of lower courts regarding preemption in products liability cases was Cipollone v. Liggett Group. (14) This case was of particular interest to many practitioners involved in both products liability and toxic tort cases because the facts of Cipollone were similar to that of any generic product case: private litigants attempting to advance state law tort claims (specifically, "failure to warn" and "breach of express warranty") in the face of an apparently preemptive federal regulatory scheme.

Cipollone specifically involved the preemptive effect of the Federal Cigarette Labeling and Advertising Act (15) ("CLAA") upon state law damage claims. It was also the first Supreme Court decision to significantly discuss the term "requirement" as used in a federal regulatory statute as a basis for preemption of state law.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Preemption in Products Liability Cases: An Analysis of Federal Product Preemption under FIFRA and Bates V. Dow Agrosciences
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.