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Generally, the "historic police powers of the States [are] not to be superseded by ...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. …