King v. EI du Pont de Nemours & Co.

• Decision Date: 23 October 1992
• Docket Number: Civ. A. No. 90-0127-B.
• Citation: 806 F. Supp. 1030
• Parties: Ernest L. KING, Sr., et al., Plaintiffs, v. E.I. du PONT de NEMOURS & CO., et al., Defendants.
• Court: U.S. District Court — District of Maine

806 F. Supp. 1030

Ernest L. KING, Sr., et al., Plaintiffs, v. E.I. du PONT de NEMOURS & CO., et al., Defendants.

Civ. A. No. 90-0127-B.

United States District Court, D. Maine.

October 23, 1992.

James F. Freeley, Jr., Boston, Mass. and John F. Harrington, Jr., Winterport, Me., for plaintiffs.

John C. Hunt, Maine Dept. of Transp., Augusta, Me., for defendant Maine Dept. of Transp.

George S. Isaacson, Brann & Isaacson, Lewiston, Me., for defendant Dow Chemical.

Peter J. Rubin, Bernstein, Shur, Sawyer & Nelson, Portland, Me., for defendants Velsicol Chemical Co. and Sandoz Corp.

Charles A. Harvey Jr., Verrill & Dana, Portland, Me., for defendant E.I. du Pont de Nemours.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

This action is before the Court on Defendants' Joint Motion for Summary Judgment. The Plaintiffs allege that they were injured by a failure on the part of the Defendant chemical corporations to warn them about the safe and proper use of certain chemical herbicide products. The Plaintiffs also allege that they were injured by a failure on the part of the chemical corporations to warn them of the harm and danger of exposure to these same chemical products. The Plaintiffs seek to impose liability under state tort law theories of negligence and strict liability.

The parties have stipulated that all of the product labels in question were submitted to and approved by the United States Environmental Protection Agency ("EPA") under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA" or the "Act"). 7 U.S.C. § 136 et seq. Under FIFRA, the EPA's authority over herbicide labeling is exclusive: states may not impose any requirements in addition to or different from those required by the EPA. 7 U.S.C. § 136v(b). The issue in this case is whether FIFRA's mandate barring states from imposing requirements on herbicide labels precludes state common law tort actions based on inadequate warnings. There has been disagreement among the circuit and district courts regarding the availability of state common law damage actions to plaintiffs injured by products labeled in accordance with FIFRA. We consider this issue under the standards set forth in the Supreme Court's recent decision in Cipollone v. Liggett Group, Inc., which examined the issue of tort preemption under a statute comparable to FIFRA. ___ U.S. ___, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Although we acknowledge the accuracy of the two Cipollone minority opinions which state that they "can only speculate as to the difficulty lower courts will encounter in attempting to implement the Court's decision", we are satisfied that Cipollone mandates that the Plaintiffs' state tort actions are preempted under FIFRA as a matter of law. Cipollone, ___ U.S. at ___, ___, 112 S.Ct. at 2631, 2637 (Blackmun, J. and Scalia, J. concurring in part, and dissenting in part). Accordingly, Defendants' motion is GRANTED.

I. FACTS

Plaintiffs, Ernest King, Sr. ("King") and Edward Higgins, Jr. ("Higgins") were employed by the Maine Department of Transportation ("MDOT"). As part of their employment duties, Plaintiffs seasonally sprayed one or more herbicides manufactured by E.I. du Pont de Nemours and Company ("du Pont"), the Dow Chemical Company ("Dow"), Velsicol Chemical Corporation ("Velsicol") and Sandoz Corporation ("Sandoz"). Plaintiffs allege that as a result of their exposure to the herbicides they have experienced nausea, headaches, loss of appetite, irritability, loss of concentration, muscle pains, joint pain and mood changes. Further, King alleges that he suffers from sleep disturbance, irritability, memory loss and continued deterioration of vision, while Higgins alleges that he suffers from all of the ailments suffered by King except impaired vision, and that he also suffers from numbness in his extremities.¹ The Plaintiffs allege they were exposed to Hyvar X, Krenite, Krenite S, and Krovar I (du Pont products), Esteron 245, Tordon 101, Garlon 3A, Garlon 4 and Dowpon M (Dow products) and Banvel 720 and Banvel 4WS (Velsicol and Sandoz products). The parties stipulated that all of the product labels in question were submitted to and approved by the EPA in accordance with FIFRA. Defs.' Stip. Paragraph 1 (July 24, 1991). The issue presented in this case is whether FIFRA preempts state tort claims based on failure to warn or inadequate warnings relating to products subject to the Act's labeling requirements.

II. FIFRA

Before being sold or distributed in the United States, all herbicides must be registered under FIFRA. 7 U.S.C. § 136(a). Originally enacted in 1947, FIFRA "was designed to work in harmony with the uniform state insecticide, fungicide and rodenticide act which was adopted in many States." S.Rep. No. 92-838, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3993, 3999. In 1972 FIFRA was amended through the Federal Environmental Pesticide Control Act. Pub.L. No. 92-516, 86 Stat. 975. The amendments, were prompted by environmental and safety concerns, as well as a "growing perception that the existing legislation was not equal to its task". See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2866, 81 L.Ed.2d 815 (1984). The amendments added use regulations and strengthened the Act's labeling standards and the EPA's enforcement powers, converting FIFRA from a labeling law into a comprehensive regulatory statute.

Under the Act as amended, the EPA cannot approve an herbicide unless it complies with the requirements established in FIFRA, and the EPA labeling regulations promulgated to implement the Act. § 136a(c)(5); 40 C.F.R. § 152.112 et seq. The EPA regulations detail how warning labels are to be presented and provide specific requirements for the content, placement, type, size and promotion of the warnings. 40 C.F.R. § 156.10(h). "Label" is defined under FIFRA to include "the written, printed or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers." 7 U.S.C. § 136(p)(1). Required warnings are specified according to the degree to which ingestion or contact with an herbicide is toxic, and these warnings must include precautionary statements about risks posed to humans. 40 C.F.R. § 156.10(h)(2)(i)(A). The regulations also specify necessary directions on how to use each chemical. 40 C.F.R. § 156.10(i).

The procedure for registration under FIFRA requires that each applicant file a statement with the Administrator of the EPA which includes the name of the chemical, a complete specimen copy of the labeling of the chemical, a statement of all claims to be made for the product, any directions for the product's 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)-(F); 40 C.F.R. Parts 152-55. If a manufacturer violates either the general requirements of FIFRA or the regulations promulgated by the EPA, the EPA is authorized to notify the United States Attorney General who, in turn, is authorized to initiate criminal or civil proceedings against the violator. 7 U.S.C. § 136g(c)(1).²

The data required to be submitted to the EPA varies with the nature of the chemical and its intended use. See 40 C.F.R. § 158.100-158.740. On the basis of the information provided by the registrant, the EPA must register the product if it determines that:

(A) Its composition is such as to warrant the proposed claims for it;

(B) Its labeling and other material required to be submitted comply with the requirements of this Act;

(C) It will perform its intended function without unreasonable adverse effects on the environment; and

(D) When used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.

7 U.S.C. § 136a(c)(5). An unreasonable adverse effect on the environment is defined under the Act as "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." 7 U.S.C. § 136(bb).

The 1972 Amendments added a section expressly setting forth the states' authority to regulate pesticides. This section states in relevant 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 Act.

(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 Act.

7 U.S.C. § 136v(a)-(b) (subsection headings added by 1988 amendments).

The statute's language, by itself, is a powerful limit on state power over labeling. A report accompanying the bill, as originally reported out of the House Committee, also indicates the limits on state power due to the division of authority between the federal and state governments: "In dividing the responsibility between the States and the Federal Government for the management of an effective pesticide program, the Committee had sic adopted language which is intended to completely preempt State authority in regard to labeling and packaging." H.R.Rep. 92-511, 92d Cong. 1st Sess. 16 (1971), as cited in Papas v. Upjohn Co., 926 F.2d 1019, 1023 (11th Cir. 1991). "Congress recognized that while the intent of the provision was `to leave to the States the authority to impose stricter regulation on pesticide use than that required under the Act,' subsection (b) preempted `any State labeling or packaging requirements differing from such requirements under the Act.'" Papas, 926 F.2d at 1023 (footnotes omitted).

III. PREEMPTION

Article VI of the Constitution provides that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Since the Supreme Court's...