ETCHEVERRY v. TRI AG SERVICE INC

Reset A A Font size: Print

Court of Appeal, Third District, California.

Monique ETCHEVERRY et al., Plaintiffs and Appellants, v. TRI-AG SERVICE, INC. et al., Defendants and Respondents.

No. C024045.

Decided: July 08, 1998

Mehlhaff & Hay, Souza, Coats, McInnis, Mehlhaff & Hay, Robert Mehlhaff, Tracy, for Plaintiffs and Appellants. Borton, Petrini & Conron, Bradley A. Post, Samuel L. Phillips, Modesto, for Defendants and Respondents Tri-Ag Service, Inc., et al. James W. Rushford, Rushford & Bonotto, Sacramento, Holtzman & Urquhart, James L. Moore, Jack E. Urquhart, John W. Ghezzi, Houston Tx., Thompson, Meade, Nielsen & Rushford, Holtzman, Urquhart & Moore, for Defendant and Respondent Miles, Inc.

Plaintiffs (Etcheverry) appeal from defense summary judgments in an action for damages to walnut orchards allegedly caused by the application of pesticides.   The pesticides were manufactured by defendant Bayer Corporation (Bayer) and sold to Etcheverry by defendant Tri-Ag Service, Inc. (Tri-Ag).   Etcheverry alleged that their walnut crop was damaged by the combined application of two pesticides, each of which is subject to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Etcheverry's complaint tenders causes of action for misrepresentation, breach of warranty, and manufacturer's liability.   The lattermost claim alleges that the pesticides are unsafe without a warning of the damage that can result from the combined application.

The defendants obtained a summary judgment on the ground all of the claims are preempted by FIFRA.   We will conclude that FIFRA does not preempt the failure to warn claims and we will reverse the judgment.

FACTS AND PROCEDURAL BACKGROUND

The complaint contains the following essential allegations.   Bayer manufactured Guthion and Morestan.   Paul Osterlie, a pest control advisor licensed under California law, worked for Tri-Ag.   In June 1993 Osterlie recommended the combined application of Guthion and Morestan at three pounds each per treated acre, along with other substances, and water delivered in an aggregate of 125 gallons of material per acre.   Etcheverry followed Osterlie's recommendations and applied the combination to three orchards, resulting in approximately $150,000 damage to the walnut crop.

Bayer moved for summary judgment.   In the ensuing proceedings Bayer adduced Etcheverry's answers to contention interrogatories which established the following essential theories of the causes of action.

The active ingredient in Guthion and in Morestan is not very soluble in water.   Each of the pesticides uses “surfactant” or adjuvant chemicals to “wet” the active ingredient so that it can be dispensed through a water spray.   A sufficient concentration of the surfactant chemicals can solubilize or dissolve waxes on the surface of plant tissue causing damage to the plants (phytotoxicity).

Osterlie's specific recommendation of the application level came from Bayer.   Bayer knew or should have known, based on numerous identified technical articles concerning the effect of surfactants on leaf surface waxes, that the combination of surfactants in Guthion and Morestan in a water solution was dangerous as potentially phytotoxic.   Bayer recommended a level of application of the pesticides which was dangerous and failed to warn of the danger.   Bayer failed to test Guthion, alone or in combination with Morestan, at the level at which it was applied to the Etcheverry orchards.

In opposition to Bayer's motion Etcheverry adduced evidence that Bayer conducted two studies in 1965 of the combined use of Morestan and Guthion.   Etcheverry also adduced the declaration of counsel that Bayer had produced no other documents in response to a discovery request inquiring about the existence of tests, experiments, or trials of the combination of Morestan and Guthion.   The first study by Bayer concerned combined use on apples during the early post-bloom period.   The study concluded that Morestan should not be used on apples during this period at rates above eight ounces per 100 gallons and it should not be combined with Guthion if phytotoxicity is to be avoided.   The second study concerned use on apples during mid-summer.   It reached similar conclusions.

Etcheverry also adduced labels, bulletins, and advertising brochures for Morestan and Guthion.

A Morestan label contains the following information of interest.   Application to walnuts to kill aphids and mites is a recommended use.   The amount recommended for Morestan is one to one and a half pounds per hundred gallons of water as a full coverage spray.   Under a section entitled “Restrictions” the following warning is provided.

“Under certain adverse weather conditions, particularly those that create slow drying of spray deposits, injury may occur to foliage of strawberries and deciduous fruit trees having new and/or tender growth.”

This restriction pertains to a risk of phytoxicity from dissolution of the surface layers of plant tissue on new or tender growth.

The Guthion label contains the following information of interest.   Application to walnuts to kill Codling moth and other insects is a recommended use.   The amount recommended is three to four pounds of Guthion per acre as a full coverage spray.

Etcheverry also adduced excerpts of Osterlie's deposition testimony.   Osterlie averred that he was told by Bayer representatives to advise combined use of Guthion and Morestan, with three pounds of Morestan per acre, in 100 or 125 gallons of water.   The Bayer representatives told him that the only problem with the mix was that “you would get some yellowing of the leaves.”

Bayer argued that FIFRA preempts all of Etcheverry's potential causes of action because they are predicated upon a breach of a duty to warn and the recognition of such a duty is barred by FIFRA.   The trial court, Judge Grande presiding, granted the motion for summary judgment except with respect to the sixth count of the complaint for misrepresentation.

Thereafter defendants Tri-Ag and Osterlie moved for summary judgment on FIFRA preemption grounds, asking the court to judicially notice the showing made by Bayer.   In addition, Tri-Ag and Osterlie adduced Etcheverry's admission, in response to an interrogatory, that Osterlie did not know of the phytotoxic effects of combining Morestan and Guthion when he made the recommendation in issue.   In some manner not disclosed by the record, the motion was set to be heard before another department of the superior court, Judge McNatt presiding.

Bayer “joined” in the summary judgment motion of Tri-Ag and Osterlie.   Bayer adduced Etcheverry's further answers to interrogatories.   Etcheverry asserted in those answers that the nature of Bayer's purported false representations was the failure to disclose the facts known exclusively to it that a combination of Morestan and Guthion alone or with other surfactants or adjuvants were phytotoxic.   When asked what writings contained such false representations Etcheverry responded that there were none, but that the two test reports were examples of writings demonstrating that Bayer had exclusive knowledge of material facts which it failed to disclose.   Bayer argued that these responses demonstrated that Etcheverry had no substantial evidence to support a theory of intentional misrepresentation, the sole basis of its evasion of the preemption bar in the earlier summary judgment proceedings.

Etcheverry opposed the combined motions for summary judgment.   The matter came on for hearing before Judge McNatt, he granted the motions for summary judgment.   Etcheverry appeals from the ensuing summary judgments.

DISCUSSION

I

The claim that FIFRA preempts state law causes of action is grounded on subdivision (b) of 7 United States Code section 136v 1 (hereafter section 136v).   It provides:

“(b) [A] 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.”

The argument for preemption, simply put, is that subdivision (b) precludes a state law action predicated on a failure to warn because liability for failure to warn is a requirement for labeling in addition to or different from that required by FIFRA.   The central flaw in the argument, simply put, is that liability under state law for failure to warn, e.g., under a strict liability theory for harm caused by an unsafe product, is not a requirement for labeling or packaging different from that required under FIFRA.

 We conclude, contrary to numerous earlier opinions (e.g., Louisiana-Pacific Corp. v. Koppers Co. (1995) 32 Cal.App.4th 599, 38 Cal.Rptr.2d 257;  Taylor AG Industries v. Pure-Gro (9th Cir.1995) 54 F.3d 555;  MacDonald v. Monsanto Co. (5th Cir.1994) 27 F.3d 1021;  Worm v. American Cyanamid Co. (4th Cir.1993) 5 F.3d 744;  King v. E.I. DuPont de Nemours and Co. (1st Cir.1993) 996 F.2d 1346;  Shaw v. Dow Brands, Inc. (7th Cir.1993) 994 F.2d 364;  Papas v. Upjohn Co. (11th Cir.1993) 985 F.2d 516 (Papas II);  Arkansas-Platte & Gulf v. Van Waters & Rogers (10th Cir.1993) 981 F.2d 1177 (Arkansas-Platte II);  Kuiper v. American Cyanamid Company (1997) 131 F.3d 656, that FIFRA does not preempt state law causes of action predicated on a failure to warn.

At the root, the view that section 136v, subdivision (b), bars such causes of action is grounded on the reflexive notion that it is unfair to impose liability for a failure to warn when the manufacturer is compelled under federal law to adhere to the warning label required by EPA. (See, e.g., Arkansas-Platte I, supra, 959 F.2d at p. 162.)   It is a policy argument.   However, the force of this sentiment does not withstand careful examination.

 The defendant's summary judgments presuppose for present purposes that there would be liability but for federal preemption.   We imply no view on the question of liability vel non, since that question is not before us.   The central liability in issue here is strict liability.   As to risks that are known or scientifically knowable, California law imposes strict liability on a manufacturer regardless of the reasonableness of the failure to warn.

“Strict liability is not concerned with the standard of due care or the reasonableness of a manufacturer's conduct.   The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.   Thus, in strict liability, as opposed to negligence, the reasonableness of the defendant's failure to warn is immaterial.”  (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112, 56 Cal.Rptr.2d 162, 920 P.2d 1347, quoting Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002-1003, 281 Cal.Rptr. 528, 810 P.2d 549.)

Thus, “[t]he actual knowledge of the individual manufacturer, even if reasonably prudent, is not the issue.”  (Carlin, supra, 13 Cal.4th at p. 1113, fn. 3, 56 Cal.Rptr.2d 162, 920 P.2d 1347.)

It is no more unfair to impose such liability when the manufacturer is constrained to use a federally prescribed label that does not contain the warning, than when the manufacturer fails to warn because it has no actual knowledge of the risk.   Liability is imposed because the product is unsafe without the warning and the unsafe product has caused harm.   Moreover, as the evidence adduced in this case shows, pesticide manufacturers do not merely cast their labeled containers into the stream of commerce.   They maintain an ongoing channel of information beyond that provided on the pesticide label advising on the proper use of pesticides.   Indeed, the label of one of the products in issue, Guthion, specifically directs the customer to communicate with the supplier and, for further information, the manufacturer when considering whether to mix it with other pesticides.   The manufacturer is free to seek amendment of product labeling (see 40 C.F.R. § 152.130(b)) and must report new information on unreasonable adverse effects of the pesticide on the environment to EPA (40 C.F.R. § 152.125.)

 Accordingly, the general rule is that it is not a defense to liability that the manufacturer was constrained to adhere to a federal warning label.  (Carlin, supra, 13 Cal.4th at pp. 1113-1117, 56 Cal.Rptr.2d 162, 920 P.2d 1347, citing inter alia to Abbot v. American Cyanamid Co. (4th Cir.1988) 844 F.2d 1108, 1112 [federal law does not preempt imposition of state common law liability for failure to warn, despite the fact that labeling, “once approved, cannot be changed without FDA approval.”].) This is in keeping with the general doctrine that there is no implication of federal preemption to be drawn from the mere fact that federal law prescribes a label.  (E.g., Carlin, supra, 13 Cal.4th at pp. 1113-1117, 56 Cal.Rptr.2d 162, 920 P.2d 1347, and cases cited therein;  Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 518, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407, 424.)   As we will show, in this specific context, such an implication is particularly untenable.

II

How then has the bulk of the case law gone astray?   The incorrect case law relies for analogy upon the United States Supreme Court's interpretation of the preemption provision of the Public Health Cigarette Smoking Act of 1969 (the 1969 Act) in Cipollone v. Liggett Group, Inc., supra.   As we will show, the case law goes wrong in failing to consider, as the proper analogy, the preemption provision of the Cigarette Labeling and Advertising Act of 1965 (the 1965 Act), which Cipollone interpreted as not preempting causes of action of the kind at issue here.   The case law also fails to consider adequately the text of section 136v, subdivision (b), in the light of subdivision (a), a provision which has no analogue in either the 1965 or 1969 Acts interpreted by Cipollone.

III

The preemption question turns upon the precise language of section 136v, read in the light of the interpretation given analogous language in Cipollone v. Liggett Group, Inc., supra, 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407.

As noted, subdivision (b) provides:

“(b) [A] 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.”

As we will show, this provision ( [no different] “requirements for labeling”) is analogous to the preemption provision in the 1965 Act (“[n]o statement ․ other than [that required by federal law] shall be required on any cigarette package”) which Cipollone concluded was limited to labeling and did not preempt a state common law cause of action for failure to warn.  (Cipollone, supra, 505 U.S. at p. 514, 112 S.Ct. at p. 2616, 120 L.Ed.2d at p. 421 .)  To conclude, as do the federal cases, that the language reaches common law actions requires the ascription of a policy to FIFRA not manifested in the language of subdivision (b), and contrary to the language of subdivision (a).

Subdivision (b) prohibits only those “requirements for labeling or packaging” that are additional to those provided by FIFRA.   The term “requirements” is plainly limited to “labeling or packaging.”   Applying the definition of “labeling” 2 , subdivision (b) prohibits the mandating of different labeling, i.e., “labels 3 and all other written, printed, or graphic matter” which are affixed to or accompany the product or to which reference is made in such writing, etc.   The argument that subdivision (b) also prohibits a state law action for failure to warn of a deleterious effect which is not required to be on the label is based on a policy argument which is inconsistent with subdivision (a).   Subdivision (a) provides:

“(a) 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.”

Subdivision (a) says that a state may regulate any sale or use of a pesticide not prohibited by FIFRA.   It does not say that subdivision (b) is an exception to subdivision (a).   It does say that a state cannot “permit” a sale or use that is prohibited.   Subdivision (a) plainly authorizes a state to regulate that which is permitted by FIFRA.   Since the case law policy argument for a restrictive interpretation rests on the premise that a use that is not shown on the label, other printed material or packages to be deleterious is permitted, and the premise is incorrect, subdivision (a) authorizes a state to prohibit or regulate such a use.   Subdivision (a) thus sanctions a state regulation in the form of a state law damages action for failure to warn of such a deleterious effect.

Subdivision (b) is limited to its precise subjects, particular cautionary statements required to be on labels, other printed material and packages.

That is made clear in the first case to construe subdivision (b), Ferebee v. Chevron Chemical Co. (D.C.Cir.1984) 736 F.2d 1529, 1539-1543.   It held that subdivision (b) has no application to a state law cause of action for damages predicated upon a duty to warn beyond the warnings prescribed by the EPA for the pesticide's label or package.   The court, relying on subdivision (a), said:

“While FIFRA does not allow states directly to impose additional labeling requirements, the Act clearly allows states to impose more stringent constraints on the use of EPA-approved pesticides than those imposed by the EPA:  ‘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 under this subchapter.’  7 U.S.C. § 136v(a).”  (Id. at p. 1541.)

Thus, according to Ferebee, a state is entitled to control a pesticide by compensatory means “for injuries that could have been prevented by a more adequate label.”  (736 F.2d at 1541.)

However, as noted, after Cipollone, supra, the tide of case law turned in the opposite direction.   Since these cases turn on a singular and simplistic reading of both section 136v and Cipollone, we must carefully examine that opinion.

IV

Cipollone

In Cipollone the Supreme Court considered claims of preemption founded on two differently worded federal statutory provisions pertaining to the regulation of cigarette advertising.   The difference in their wordings is critical to understanding the case.

The first provision, contained in the 1965 Act, prohibited a state from requiring a statement on any cigarette package or advertising relating to smoking and health not in conformity with the federal act.   The provision, as quoted in Cipollone, 505 U.S. at p. 514, 112 S.Ct. at p. 2616, 120 L.Ed.2d at p. 421, reads as follows:

“(a) No statement relating to smoking and health, other than the statement required by section 4 of this Act, shall be required on any cigarette package.

“(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.” (Ibid.)

The Supreme Court held that this provision did not preempt state law causes of action for failure to warn.   It reasoned as follows:

“[O]n their face, these provisions merely prohibited state and federal rulemaking bodies from mandating particular cautionary statements on cigarette labels (§ 5(a)) or in cigarette advertisements (§ 5(b)).

“Beyond the precise words of these provisions, this reading is appropriate for several reasons.   First, as discussed above, we must construe these provisions in light of the presumption against the pre-emption of state police power regulations.   This presumption reinforces the appropriateness of a narrow reading of § 5. Second, the warning required in § 4 does not by its own effect foreclose additional obligations imposed under state law.   That Congress requires a particular warning label does not automatically pre-empt a regulatory field.   See McDermott v. Wisconsin, 228 U.S. 115, 131-132, 33 S.Ct. 431, 57 L.Ed. 754 (1913).   Third, there is no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common-law damages actions.   For example, in the Comprehensive Smokeless Tobacco Health Education Act of 1986, Congress expressly pre-empted state or local imposition of a ‘statement relating to the use of smokeless tobacco products and health’ but, at the same time, preserved state-law damages actions based on those products.   See 15 USC § 4406 [15 USC § 4406].   All of these considerations indicate that § 5 is best read as having superseded only positive enactments by legislatures or administrative agencies that mandate particular warning labels.”  (505 U.S. at pp.   518-519, 112 S.Ct. at pp. 2618-2619, 120 L.Ed.2d at p. 424, fns. omitted.)

The Supreme Court majority found this reading supported by the statement of purpose, the historical context, and the committee reports concerning the preemption provision in the 1965 Act. “[W]e conclude that § 5 of the 1965 Act only preempted state and federal rulemaking bodies from mandating particular cautionary statements and did not pre-empt state-law damages actions.”  (505 U.S. at pp.   519-520, 112 S.Ct. at p. 2619, 120 L.Ed.2d at p. 425, fn. omitted.)

The second provision considered by Cipollone was contained in the 1969 Act. It 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.’ ” (Cipollone, 505 U.S. at p. 515, 112 S.Ct. at p. 2617, 120 L.Ed.2d 422.)

As to this provision the Supreme Court reached the opposite result.   For its meaning we look to the plurality portion of Justice Stevens' opinion, since on the question of preemption it garnered an implicit majority with the concurrence of Justices Scalia and Thomas.  (See Cipollone, 505 U.S. at pp. 544, 548, 112 S.Ct. at pp. 2631, 2634, 120 L.Ed.2d 440, 443, conc. and diss. opn. of Scalia, J.)

The plurality opinion notes that the 1969 Act:

“amended the 1965 Act in several ways.   First, the 1969 Act strengthened the warning label, in part by requiring a statement that cigarette smoking ‘is dangerous' rather than that it ‘may be hazardous.’   Second, the 1969 Act banned cigarette advertising in ‘any medium of electronic communication subject to [FCC] jurisdiction.’   Third, and related, the 1969 Act modified the pre-emption provision by replacing the original § 5(b) with a provision that reads:

“ ‘(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.’ ” (Cipollone, 505 U.S. at p. 515, 112 S.Ct. at p. 2617, 120 L.Ed.2d at p. 422.)

The plurality reasoned that, in light of the substantial departure from the text of the 1965 Act, the 1969 Act did preempt some state-law damages actions.

“Compared to its predecessor in the 1965 Act, the plain language of the pre-emption provision in the 1969 Act is much broader.   First, the later Act bars not simply ‘statement[s]’ but rather ‘requirement[s] or prohibition[s] ․ imposed under State law.’   Second, the later Act reaches beyond statements ‘in the advertising’ to obligations ‘with respect to the advertising or promotion’ of cigarettes.”  (Cipollone, 505 U.S. at p. 520, 112 S.Ct. at p. 2619, 120 L.Ed.2d at p. 425;  emphasis added.)

The plaintiff argued that the terms “requirement[s] or prohibition[s]” simply could not be applied to common law damages actions.   The plurality opinion replied:  “The phrase ‘[n]o requirement or prohibition’ 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.”  (505 U.S. at p. 521, 112 S.Ct. at p. 2620, 120 L.Ed.2d at p. 426.)

The opinion also rejected plaintiff's argument that the phrase “State law” could not be applied to a common law claim and then returned to its central rationale.

“As explained above, the 1965 version of § 5 was precise and narrow on its face;  the obviously broader language of the 1969 version extended that section's pre-emptive reach.   Moreover, while the version of the 1969 Act passed by the Senate pre-empted ‘any State statute or regulation with respect to ․ advertising or promotion,’ S Rep No. 91-566, p 16 (1969), the Conference Committee replaced this language with ‘State law with respect to advertising or promotion.’   In such a situation, § 5(b)'s pre-emption of ‘state law’ cannot fairly be limited to positive enactments.”  (505 U.S. at pp.   522-523, 112 S.Ct. at pp. 2620-2621, 120 L.Ed.2d at p. 427;  orig. emphasis and emphasis added.)

With this view in mind, the plurality stated its analytic perspective.

“The central inquiry in each case is straightforward:  we ask whether the legal duty that is the predicate of the common-law damages action constitutes a ‘requirement or prohibition based on smoking and health ․ imposed under State law with respect to ․ advertising or promotion,’ giving that clause a fair but narrow reading.   As discussed below, each phrase within that clause limits the universe of common-law claims pre-empted by the statute.”  (505 U.S. at pp.   523-524, 112 S.Ct. at p. 2621, 120 L.Ed.2d at p. 427;  emphasis added.)

Given this perspective the plurality decided that common law claims were pre-empted that were based on the theory the cigarette manufacturer had failed to provide adequate warnings of the health consequences of smoking.  (505 U.S. at pp.   524-525, 112 S.Ct. at pp. 2621-2622, 120 L.Ed.2d at pp. 427-428.)   Similarly, in view of the ban on any “requirement or prohibition,” the court held that the 1969 Act also preempted claims for misrepresentation on the theory that statements in promotional materials minimizing the health risks undercut the required health warning (505 U.S. at pp.   527-528, 112 S.Ct. at p. 2623, 120 L.Ed.2d at pp. 429-430.)

By contrast, the court ruled that claims predicated on express warranty, affirmation of facts or promises concerning the goods were not barred, notwithstanding they were based on statements in the cigarette advertising.   (505 U.S. at p. 525, 112 S.Ct. at p. 2622, 120 L.Ed.2d at p. 428.)   Similarly, claims predicated on breach of a duty to avoid misrepresentation via false statements, notwithstanding that the asserted falsehoods were contained in advertising, are also not banned.   The court exempted these claims because the purpose of the 1968 requirement was avoidance of deceit.   They were not aimed at the relation of “smoking and health,” i.e., they did not impose a duty to avoid injury to health by inducing smoking.  (505 U.S. at pp.   528-529, 112 S.Ct. at pp. 2623-2624, 120 L.Ed.2d at pp. 430-431.)

V

Post-Cipollone FIFRA Case Law

Arkansas-Platte II, supra, 981 F.2d 1177, was the first federal circuit court opinion to consider subdivision (b) of section 136v after Cipollone.

The 10th Circuit Court of Appeals had earlier disagreed with Ferebee and decided that FIFRA preempted a cause of action by a landowner against a manufacturer for failing to warn of a pollution hazard posed by a chemical used to treat wooden fence posts.  (Arkansas-Platte & Gulf v. Van Waters & Rogers (10th Cir.1992) 959 F.2d 158 (Arkansas-Platte I.)) The case was remanded by the Supreme Court for reconsideration after Cipollone.   The Court of Appeals, addressing only Cipollone 's plurality discussion of the preemption provision of the 1969 Act and the plurality's response to the plaintiff's argument that “requirement or prohibition” could not include a common law cause of action, said that nothing in Cipollone undercut its earlier conclusion.

“Section 136v(b) prohibits a state from imposing ‘any requirement for labeling or packaging in addition to or different from those required under this subchapter.’ (emphasis added.)   In comparison, section 5(b) of the Cigarette Smoking Act [the 1969 Act] states:

“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.

“(emphasis added).   Although the words employed in § 136v(b) of FIFRA are different from those in § 5(b) of the Cigarette Smoking Act, their effect is the same.  Section 136v(b) exists in the context of what federal law permits the state to regulate, and it simply deprives the state of power to adopt any regulation.   This is as broad as the § 5(b) proscription.

“We believe also the prohibition of ‘any’ requirement is the functional equivalent of ‘no’ requirement.   We see no difference between the operative effect of the two acts.”  (Arkansas-Platte II, 981 F.2d at p. 1179, emph. added.)

On remand the court did not discuss the relationship of subdivision (a) to subdivision (b).   However, in the earlier decision the court said that “[s]ection 136v(b) clearly narrows the general grant of § 136v(a) to exclude ‘requirements for labeling or packaging.’ ”  (Arkansas-Platte I, supra, 959 F.2d at p. 162;  emphasis in original.)   This misses the point.   Subdivision (b) concerns only the “requirements for labeling”, thus limiting its reach to the contents of the label or labeling.  (Emphasis added.)   Subdivision (a) plainly authorizes a state to prohibit that which FIFRA permits and hence rules out any implication that subdivision (b) insulates from state regulation any deleterious effect not shown on a label or package.

Papas II followed hard on the heels of Arkansas-Platte II. The Papas II court had earlier found broad FIFRA preemption (Papas v. Upjohn Co. (11th Cir.1991) 926 F.2d 1019 (Papas I ) and was remanded for reconsideration in light of Cipollone.  Papas II gave even shorter short shrift to the Cipollone analysis.

“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 [505 U.S.] at [521] 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.”  (Papas II, 985 F.2d at p. 518.)

The next case up, the 7th circuit's Shaw opinion, also focusing on the term “requirements” in the 1969 Act and in FIFRA, concluded that “not even the most dedicated hairsplitter could distinguish [between the two provisions]” and that Cipollone “destroyed whatever argument Shaw might have had about preemption․”  (Shaw, 994 F.2d at p. 371.)   The ensuing federal circuit court opinions and Louisiana-Pacific Corp. v. Koppers Co., supra, 32 Cal.App.4th 599, 38 Cal.Rptr.2d 257 are of the same ilk.

VI

Cipollone Considered Anew

A striking omission in the post-Cipollone FIFRA preemption case law is the lack of any comparison of the FIFRA preemption provision and the preemption provision in the 1965 Act, the first provision discussed above.   The point that is missed is that the FIFRA language, in section 136v, subdivision (b), is more analogous to the provision of the 1965 Act, held not to preempt a cause of action for failure to warn, than it is to the 1969 Act provision.   To demonstrate this, we substitute the core of the 1965 Act provision into the format of 136v, subdivision (b), and then do the same with the 1969 Act provision.

As related, Cipollone held that the 1965 Act did not preempt state-law damages actions.   It provided that “no statement relating to smoking and health” other than that required by the federal law “shall be required” on cigarette packages or advertising if the packages are labeled as required by federal law.  (Cipollone, supra, 505 U.S. at p. 514, 112 S.Ct. at p. 514, 120 L.Ed.2d at p. 421.)   Substituting this usage for the FIFRA usage results in the following preemption provision:

“Such State (or federal agency) shall not impose or continue in effect any requirements for [a smoking and health risk warning on packaging (or in advertising) ] in addition to or different from [that] required under [the 1965 Act].”

The substitution of “requirements” for “required” shows the preemption provision in the 1965 Act is a cognate of the FIFRA preemption provision.

By contrast, the 1969 Act, says “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes․”  (Cipollone, 505 U.S. at p. 515, 112 S.Ct. at p. 2617, 120 L.Ed.2d 422.)   Here the state “requirement” that is proscribed is not limited to “for labeling or packaging” or “in the advertising” i.e., packaging or advertising with a different or additional warning, but any requirement at all “imposed under State law with respect to advertising or promotion of any cigarettes․”  (Emphasis added.)   To translate this usage into the FIFRA, 136v, subdivision (b) format, results in the following preemption provision:

“such State shall not impose or continue in effect any requirements or prohibitions [based on pesticide use and health or the environment with respect to advertising or promotion of any pesticides labeled in conformity with FIFRA].”

The actual FIFRA provision, section 136v, subdivision (b), is more grammatically akin to the preemption provision of the 1965 Act considered in Cipollone than it is to the 1969 Act preemption provision.   It bears superficial resemblance to the 1969 Act in that both use the term “requirement.”   However, that point of congruence is not material.   The 1965 Act employs the same expression in the verb form, “be required,” rather than the noun form “requirement.”  (See, e.g., Cipollone, 505 U.S. at p. 518, 112 S.Ct. at p. 2618, 120 L.Ed.2d at p. 424, in speaking of the 1965 Act provision the court notes:  “[T]here is no general, inherent conflict between federal preemption of state warning requirements and the continued vitality of state common-law damages actions.”  (Emphasis added.))

Indeed, any express preemption provision must be addressed to some kind of “requirement,” however denominated, which is to be preempted.   The material question concerns the substance of proscribed requirement, i.e., what is proscribed, rather than the talismanic label “requirement”.   The Cipollone plurality did not conclude that “requirement” is a term of art which invariably indicates that a preemption provision is intended to encroach on state common law damages actions.   It merely decided the term could include state common law damages actions-in responding to the plaintiff's argument to the contrary.   It did not do so because of the abstract reach of the term “requirements”, but in light of the change in the preemption language between the 1965 and 1969 Acts, the several respects in which the new 1969 Act language signals that the change was meant to broaden preemption, and the particulars of the statutory history related above.

The Cipollone plurality opinion stands on far too many legs to be reduced to:  the use of the term “requirements” invariably means that state common law damages actions are preempted.   No factors comparable to those present in the 1969 Act, relied upon by the Cipollone plurality, are present in the FIFRA context.   Nothing weighs in the balance to overcome the presumption of narrow construction of section 136v, subdivision (b) to avoid encroachment on “ ‘the historic police powers of the States.’ ”  (Cipollone, 505 U.S. at p. 516, 112 S.Ct. at p. 2617, 120 L.Ed.2d at p. 422).

 FIFRA explicitly federalizes only the policy choice whether the benefit derived from the use of a pesticide outweighs the risks of harm.   As noted above, notwithstanding federal registration of a pesticide, subdivision (a) of section 136v grants states and local governments (e.g., Wisconsin Public Intervenor v. Mortier (1991) 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532) unfettered authority to regulate the sale or use of pesticides except for the content of the label.   A state can forbid the use of a pesticide approved under federal law, provide for a no fault liability, or condition the sale of a pesticide on advertising the potential adverse effects of the pesticide's use.

Moreover, under the FIFRA scheme the manufacturer initiates the content of EPA required labeling by supplying draft labeling in the registration process.  (40 C.F.R. § 152.50(e).)   As noted, the manufacturer is free to seek amendment of product labeling (see 40 C.F.R. § 152.130(b)) and must report new information on unreasonable adverse effects of the pesticide on the environment to EPA (40 C.F.R. § 152.125.)

 As noted, the evidence adduced in this case shows that pesticide manufacturers do not merely cast their labeled containers into the stream of commerce.   They maintain an ongoing channel of information beyond that provided on the pesticide label advising on the proper use of pesticides.   Here, the manufacturer recommended the combined use of the two pesticides, a recommendation that is not addressed by the EPA label.   Indeed, the label of one of the products in issue, Guthion, specifically directs the customer to communicate with the supplier and, for further information, the manufacturer when considering whether to mix it with other pesticides.

For all the foregoing reasons, we must respectfully part company with the numerous courts which have held, after Cipollone, that FIFRA preempts state common law causes of action for failure to warn of the nature in issue in this case.

The trial court erred in granting the motions for summary judgment.   In light of this conclusion none of the other points raised by the parties need be discussed.

DISPOSITION

The judgment is reversed.   Etcheverry shall recover the costs of this appeal.

I respectfully disagree with my colleagues concerning federal preemption in this case.   They couch the issue in terms of a policy decision-determining what is fair.   While I agree federal preemption involves policy decisions, we are not the policy makers.   In this case, it is Congress.   Accordingly, I purport only to apply the clear language of the congressional acts.  (See Louisiana-Pacific Corp. v. Koppers Co. (1995) 32 Cal.App.4th 599, 38 Cal.Rptr.2d 257 [finding preemption in a similar case].)

The majority implies the preemption analysis is somehow different because “[t]he central liability in issue here is strict liability.”  (Maj. opn., p. 469.) There is no support in the law for this view.   Whether a requirement is imposed via strict liability or liability for negligence, it is still a requirement.  “[A] 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.”  (7 U.S.C. § 136v(b), italics added.)

Concerning strict liability for failure to warn, Witkin states:  “Even though a product is flawlessly manufactured and designed, it may be ‘defective’ if a reasonably foreseeable use involves a substantial danger not readily recognizable by the ordinary consumer, and the manufacturer fails to provide an adequate warning.  [Citations.]  [¶] A manufacturer may satisfy its duty to warn by either instructing the consumer on the proper use of the product or by informing him of any known, or knowable, risks or side effects which might follow from its foreseeable use.”  (6 Witkin, Summary of Cal. Law (9th ed.   1988) Torts, § 1265, p. 707, italics added.)

A duty to warn imposed on a defendant in the context of a common law action is a requirement.  (Steele v. Collagen Corp. (1997) 54 Cal.App.4th 1474, 1483-1484, 63 Cal.Rptr.2d 879.)   Thus, the duty Etcheverry seeks to have the state impose on Bayer by way of a strict liability action-the duty to warn concerning the danger to some plants of combining Guthion and Morestan-is a requirement.   Imposition of this duty, however, is prohibited by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), under 7 U.S.C. 136v, subdivision (b).

Furthermore, it is irrelevant that, under FIFRA, the manufacturer can submit new proposals for labeling after the initial approval by the EPA. Requiring the manufacturer to warn in a way different from the labeling approved by the EPA or to submit new proposals for labeling to the EPA would constitute “requirements for labeling or packaging in addition to or different from” those already required under FIFRA.

“Rather than creating a mere labeling statute, Congress in 1972, ‘transformed it [FIFRA] into a comprehensive regulatory statute governing the use and sale of pesticides.’  [Citation.]  [A United States Court of Appeals case] noted the ‘rigorous label-approval process under FIFRA.’   The court explained:  ‘Although FIFRA does not prescribe the exact contents of labels, manufacturers are not free, ․ to create pesticide labels in any manner they choose.   Rather, ․ the EPA approves each label only after a careful review of the product data and the draft label.’  (Ibid.) [¶] Given the statutory framework of FIFRA, a broad interpretation of the word ‘label’ under FIFRA is consistent with Medtronic.   Not only does FIFRA define ‘label’ expansively, but it represents a situation ‘in which the Federal Government has weighed the competing interests relevant to the particular requirement in question, reached an unambiguous conclusion about how those competing considerations should be resolved in a particular case or set of cases, and implemented that conclusion via a specific mandate on manufacturers or producers' (Medtronic, supra, 518 U.S. 470, 501 [116 S.Ct. 2240, 2258] ).”  (People ex rel. Lungren v. Cotter & Co. (1997) 53 Cal.App.4th 1373, 1389-1390, 62 Cal.Rptr.2d 368.)

A manufacturer can be held liable for damages resulting from many causes not preempted by FIFRA:  failure to follow the FIFRA requirements with respect to labeling, making representations not contained in the FIFRA labeling, formulation of the product not in accordance with the formula submitted to the EPA, and many other actions with respect to insecticides, fungicides, and rodenticides.   The state may impose duties in these actions, among other reasons, because Congress, in 7 U.S.C. 136v, subdivision (a), has allowed it.   However, because of the express preemption provision enacted by Congress in 7 U.S.C. 136v, subdivision (b), the state cannot hold a manufacturer liable for damages resulting from a failure to warn if the duty to warn imposed as a result of the state action is “in addition to or different from” the warnings approved by, and therefore required by, the EPA. Any other interpretation renders subdivision (b) meaningless.

The majority rejects a wealth of cases, both from the federal courts and from our state Court of Appeal, which have held that Cipollone mandates the conclusion that state actions involving FIFRA based on a duty to warn are preempted.   It claims those cases erred in analogizing FIFRA to the Public Health Cigarette Smoking Act of 1969 rather than the Cigarette Labeling and Advertising Act of 1965.   I find the many cases rejected by the majority more persuasive in this regard.  (See maj. opn., pp. 469-470;  see also Romah v. Hygienic Sanitation Co. (Pa.Super.1997) 705 A.2d 841, 852-853;  Lyall v. Leslie's Poolmart (E.D.Mich.1997) 984 F.Supp. 587, 591-592;  Didier v. Drexel Chemical Co. (1997) 86 Wash.App. 795, 938 P.2d 364, 366-369;  Ackles v. Luttrell (Ne.1997) 252 Neb. 273, 561 N.W.2d 573.)  “One may seriously and fairly question the strength of a juridical light that is discerned by so few and invisible to so many.”  (People v. Disbrow (1976) 16 Cal.3d 101, 129, 127 Cal.Rptr. 360, 545 P.2d 272 (dis. opn. of Richardson, J.).)

“Labeling” is a term defined by FIFRA as “all labels and all other written, printed, or graphic matter [¶] (A) accompanying the pesticide or device at any time;  or [¶] (B) to which reference is made on the label or in literature accompanying the pesticide or device․”  (7 U.S.C. § 136(p)(2).)   With this broad statutory definition of “labeling” in mind, the preemption clause of FIFRA prohibits imposition of any state requirement of any writing concerning the product to be passed along to the supplier and user, which writing is in addition to or different from those required by FIFRA.   As a result, any common law cause of action that seeks to impose on the manufacturer a duty to inform the supplier or user of the product of matters in addition to or different from those required by FIFRA is preempted.

The majority makes much of the fact that section 136v, subdivision (a) grants the states authority to regulate the sale and use of pesticides to the extent the regulation does not permit any sale or use prohibited by FIFRA.   (Maj. opn., p. 471.)   Subdivision (a), however, lends little to the interpretation of subdivision (b).   Congress's grant of regulatory power to the states need not be plenary.   Indeed, in the case of FIFRA, Congress, by enacting subdivision (b), expressly withheld from the states the power to regulate with respect to warnings.   Congress clearly wanted one standard for warnings, not 50.

Since, in my view, 7 U.S.C. section 136v, subdivision (b), preempts any state requirement for “labeling or packaging” different from or in addition to those approved and therefore required by the EPA and “labeling and packaging” are interpreted broadly to mean all warnings concerning the product, I would hold that FIFRA preempts state causes of action based on a duty to warn different from or in addition to those approved by the EPA. Accordingly, I would affirm.

FOOTNOTES

1.   Section 136v reads in pertinent part as follows:“(a) 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) 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.”“(c)(1) A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator [of the Environmental Protection Agency (EPA) ]. Such registration shall be deemed registration under section 136a of this title for all purposes of this subchapter, but shall authorize distribution and use only within such State.”

2.   “Labeling”, as defined in section 136(p)(2), refers to all “labels and all other written, printed or graphic matter” which accompanies the pesticide or device or “to which reference is made on the label or in literature accompanying the pesticide or device․”  (7 U.S.C. § 136(p)(2).)

3.   “Label”, as defined in section 136(p)(1), refers to the “written, printed or graphic matter” affixed to the pesticide or device or any of its containers or wrappers.  (7 U.S.C. § 136(p)(1).)

BLEASE, Acting Presiding Justice.

MORRISON, J., concurs.

Copied to clipboard