MACIAS v. STATE

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Court of Appeal, Second District, Division 7, California.

Alfonso MACIAS et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

No. B071479.

Decided: March 04, 1994

Litt, Marquez & Fajardo and Barrett S. Litt and Anne Richardson, Los Angeles, for plaintiffs and appellants. Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Walter Wunderlich, Sr. Asst. Atty. Gen. and Charles W. Getz, IV, Supervising Deputy Atty. Gen., for amicus State of California. Haight, Brown & Bonesteel and Roy G. Weatherup and Mary Ann Murphy, Santa Monica, for defendant and respondent American Cyanamid Co. Munger, Tolles & Olson and Charles D. Siegal, Allison B. Stein and Mark A. Merva, Los Angeles, for respondents Platte Chemical Co. and United Agr. Products.

Plaintiffs Alfonso and Sophia Macias and their son, Juan Macias (by and through his guardian ad litem) appeal an order and summary judgment in favor of defendants American Cyanamid Company (“Cyanamid”) and Platte Chemical Company (“Platte”) and United Agri Products (“United”) (collectively the “Manufacturers”).1  The Maciases sought damages and injunctive relief by reason of injuries suffered by 14 year old Juan.   Juan sustained permanent optic nerve damage causing legal blindness as a direct result of the aerial helicopter spraying of the malathion mixed with bait upon him.2  This spraying of insecticide over Los Angeles by the State of California was in response to the Mediterranean Fruit Fly (Medfly) infestation.3

Cyanamid, Platte, and United were the manufacturers and/or distributors of the malathion used in the 1989–90 spray program.   They were parties most knowledgeable about the risks and hazards of the toxic substance.   The Maciases' product liability claim against the manufacturer defendants alleged a negligent failure to warn.

Specifically, the Second Amended Complaint alleges that the manufacturers and distributors knew that (1) their malathion was to be used in urban spraying, with direct exposure to the urban population of Los Angeles;  (2) the government officials involved were misrepresenting the dangers involved;  (3) the misrepresentations included the claim that there was no health hazard;  there was a failure to warn those subject to the spray they should avoid contact with the spray and should immediately and vigorously wash and call a doctor right away if they did have contact;  and (4) the “warnings” given were contrary to those which were placed on the manufacturer's label under Environmental Protection Agency (EPA) supervision for urban sprayings;  they were contrary to what was called for by the EPA's approval of the State's request to engage in urban sprayings and they were unreasonable in light of the risks involved and the precautions needed.

The Maciases do not allege the manufacturer's label was inadequate.   They allege that after the manufacturers learned the governmental entities to whom they had sold the malathion were giving false, misleading and inadequate warnings, the manufacturers had an independent duty to the public to warn of the risks, or at a minimum, to refuse to sell the malathion without assurances that the proper warnings would be provided.

A “Special Local Need” had been issued by EPA to allow the State to spray the malathion/bait mixture.   It contained a number of requirements, among them, to give notice to the public of the warnings on the product label.  (“The public shall be given prior notification․  Such information shall include the date treatment is to be made, material to be made, and the precautions listed on the product label”).  (Emphasis added.)

That “Special Local Need”, for which registration was obtained by the California Department of Food and Agriculture from the EPA, set out the requirements for the Malathion spraying program at issue here.   Representatives of Cyanamid, Laura Whatley, and of Platte, Bob Ehn, among others, were specifically listed as receiving copies of that Special Local Need.

The precautions listed on the EPA approved label expressly stated that the product was harmful if swallowed, inhaled, or absorbed through the skin, and that certain precautions, such as washing vigorously and consulting a physician, should be taken in the event of exposure to the malathion.   The complaint alleged the governmental defendants were supposed to have provided these warnings to the public but failed to do so, and that the manufacturer defendants were aware of these facts.

The information in fact given, it is alleged, was in clear violation of federal guidelines for labeling, pursuant to 40 C.F.R. section 156.10(a)(5), which prohibits representations that the product is safe or harmless, or words to that effect.

Specifically, that section provides:

“(a)(5) Examples of statements or representations in the labeling which constitute misbranding include:

“․

“(ix) Claims as to the safety of the pesticide or its ingredients, including statements such as ‘safe,’ ‘nonpoisonous,’ ‘noninjurious,’ ‘harmless,’ or ‘nontoxic to humans or pets' with or without such a qualifying phrase as ‘when used as directed;’ and

“(x) Non-numerical and/or comparative statements on the safety of the product, including but not limited to:

“․ (B) ‘Among the least toxic chemicals known.’  [Emphasis added].”

The amended complaint alleges:  Defendants were aware that the actual notice sent out to the public by the State violated all these federal standards for labeling of a pesticide.   The false statement issued included:  “NO HEALTH HAZARD,” “no danger to pregnant women,” and “one of the safest insecticides.”

In June of 1990, an EPA memo recommended against granting an emergency exemption for the use of malathion to the California Department of Food and Agriculture in Southern California stating:

“[U]ncertainties exist at this time as to the likelihood that malathion at levels being applied in the aerial medfly eradication program will induce damage to the visual system analogous to that reported to have resulted from organophosphate aerial spraying in Japan [resulting in serious damage to the visual system].”

The EPA recommended against granting an exemption until further studies on optical effects had been conducted.  (Id.)

It is further alleged, in 1991 the California Department of Health Services (DHS) released a “Health Risk Assessment of Aerial Application of Malathion.”   In its conclusions and recommendations, the DHS recommended that the use of aerial malathion-bait applications in urban areas for agricultural pest eradication be reconsidered.   Specifically, the DHS emphasized the need for precaution for a sensitive subpopulation.

THE TRIAL COURT DECISION

THE JANUARY 19, 1992 ORDER

After Cyanamid's various motions were filed, the Maciases dropped all claims against the manufacturers except for strict liability and negligence for failure to warn.

On January 29, 1992, the judge issued an “Order on Submitted Matter,” ruling the Maciases' claims against American Cyanamid were not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) to the extent the claims relied on a manufacturer's state-law duty to warn the public, “upon learning that a pesticide it has manufactured is being used, or is about to be used, in a manner not in accordance with the warnings on the EPA-approved labeling.”  (Italics added.)   The Court expressly left open the question of whether such a state law duty existed, but ruled, if it did, such a claim would not be preempted by FIFRA.

At the same hearing the trial court found the Macias' claim for Cyanamid labeling was barred by FIFRA (federal) preemption.

THE FEBRUARY 5, 1992 ORDER

On February 5, 1992, the trial court issued a “Further Ruling on Submitted Matter,” dividing up the remaining state law question into two subparts:

First, did American Cyanamid bear some duty to ensure that the warnings provided by the FIFRA material were transmitted downstream to potentially affected bystanders, regardless of any notice of inadequate warnings to American Cyanamid?

Second, assuming American Cyanamid obtained actual notice that a downstream user was failing to provide proper warnings, did the acquisition of such actual notice impose a duty upon American Cyanamid to attempt to communicate proper warnings to down stream bystanders?

The court granted summary adjudication declaring American Cyanamid did not have a duty to provide warnings, assuming lack of actual notice, and “without regard to its state of knowledge or its participation in the spraying program.”   However, the court explicitly left open the remaining question of “whether a manufacturer, upon obtaining actual knowledge that its product was being used without proper warnings, incurs a duty of some scope to take action of some type to counteract the lack of proper warning, presumably by providing information or warnings of some type to downstream users or potential bystanders.”

The court then ordered the parties to brief this final “duty to warn” issue.   The parties briefed the issue.   The State of California filed a statement in support of Cyanamid's position regarding warning claims.   The State took this position:  “Under Food & Agricultural Code section 5029, any duty to warn beyond that imposed by FIFRA does not fall on the vendors of the State of California, but upon the State of California and more specifically, the agency of the State subject to that section of the law.”  “The State and the State alone should defend [the Medfly Eradication Program] and its implementation as the responsible party․” 4

THE MAY 5, 1993 ORDER

On May 5, 1993, the superior court issued its final order on the Cyanamid duty to warn issue.   The court held that the remaining issue on duty to warn is whether a manufacturer, upon obtaining actual notice that its product is being used without proper warnings, incurs a duty of some scope to take action of some type to counteract the lack of proper warning, presumably by providing information or warnings of some type to downstream users or potential bystanders.   The court felt this issue was colored by the fact that the user of the product was a governmental entity acting pursuant to statutory authorization.

The court declared the case does not involve Cyanamid's buyer, but rather a second buyer downstream from the buyer to whom Cyanamid sold, the State of California.   The court held, as a matter of law, it was reasonable for Cyanamid to rely on the ultimate downstream user, the State.   The court noted the State's use of malathion during the Medfly Eradication Program was authorized by statutes enacted by elective representatives of the people of the State, who could have halted the spraying program at any time by eliminating the statutory authorization for the executive branch to conduct the program.

The court concluded there was no case law or other theory of law to support the proposition that a manufacturer such as Cyanamid could not justifiably rely on a popularly elected state executive branch, acting according to laws enacted by popularly elected representatives, to warn its constituents appropriately.  (Food & Agr. Code, § 5029.)

With respect to Restatement (Second) Torts section 388, the court noted subdivision (b) is obviously missing from the factual scenario.5  Subdivision (b) is present only when the supplier “has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition.”

The trial court concluded there was no authority for the proposition that a manufacturer in the position of Cyanamid incurs liability for not seeking to supplement the actions of a State government in such circumstances.

The trial court then granted on May 5, 1993 the summary adjudication on the warning claims against Cyanamid.   The order provided that any failure to warn claim against Cyanamid based on a theory of inadequacy of Cyanamid's EPA-approved labeling is preempted by FIFRA;  that Cyanamid did not have a duty to provide warnings to downstream users or buyers of malathion or bystanders regardless of its state of knowledge or alleged participation in the Medfly Eradication Program.   On August 13, 1992, the court granted summary judgment in favor of Cyanamid on duty to warn, and entered judgment in favor of Cyanamid.   Plaintiffs filed a timely notice of appeal.

DISCUSSION

I

This is not a case where the product (Malathion) is claimed to be defective or mislabeled.   Rather, the amended complaint charges the manufacturer had an independent duty to warn the public in the factual context alleged.   This appeal presents a pure question of law—to wit whether Cyanamid hada duty to warn downstream users or bystanders.   In resolving this “pure question of law” we examine the record for triable issues of fact.

California Code of Civil Procedure section 437c requires the trial court to grant summary judgment in a case if no triable issue exists as to a material fact.

 Where, as in the case at bar, a defendant seeks summary judgment, his declarations and evidence must either establish a complete defense to plaintiff's action or demonstrate an absence of an essential element of plaintiff's case.   If defendant establishes the foregoing, and the plaintiff's declaration in reply does not show that there is a triable issue of fact with respect to that defense or that an essential element exists, the summary judgment should be granted.  (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266, 241 Cal.Rptr. 706.)

 These general principles also apply to an appellate court's review of a summary judgment ruling.

 An appellate court examines the facts presented to the trial judge on a summary judgment motion and independently determines their effect as a matter of law.  (Bonus–Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357.)   We are not bound by the trial court's stated reasons, if any, supporting its ruling;  we review the ruling, not its rationale.  (Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682, 187 Cal.Rptr. 219.)   By an unbroken line of decision in this state since the date of the original enactment of section 437c, the principle has become well established that “issue finding rather than issue determination is the pivot upon which the summary judgment law turns”.  (Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62.)

II

 We confront these threshold questions:  Does a duty exist?   Was it incumbent upon Cyanamid to warn downstream bystanders in the factual context alleged?   This is a matter of law to be determined de novo by this appellate court.

In Weirum v. RKO General, Inc., 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36, the court states:

“The determination of duty is primarily a question of law.  (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 307 [29 Cal.Rptr. 33, 379 P.2d 513] [overruled on other grounds in Dillon v. Legg (1968) 68 Cal.2d 728, 748, 69 Cal.Rptr. 72, 441 P.2d 912].)   It is the court's ‘expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’  (Prosser, Law of Torts [4th ed. 1971] pp. 325–326.)”

 While duty is a question of law, foreseeability is a question of fact for the jury.  (Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812.)

 Concerning the interrelation of legal duty to foreseeability, in Schauf v. Southern California Edison Co. (1966) 243 Cal.App.2d 450, 458, 52 Cal.Rptr. 518, the Court of Appeal explained, “[e]xcept where the ultimate determination as to whether a duty exists turns on foreseeability, its existence is initially a question of law.”   Foreseeability is the same issue as “reasonableness”:  whether or not the defendant can foresee that the ultimate user will be adequately warned.

Some of the cases that have reviewed the question of the existence of a duty to downstream users have used the term foreseeability rather than reasonableness.  (See, e.g., In re Related Asbestos Cases (N.D.Cal.1982) 543 F.Supp. 1142, 1151, where “plaintiffs were permitted to negate the defense by showing that the sophisticated employer's misuse of the product was foreseeable.”)  (Italics added.)

In Hopkins v. Chip–In–Saw (8th Cir.1980) 630 F.2d 616, 619, the appellate court declared:

“When a manufacturer can reasonably foresee that the warnings it gives to a purchaser of its product will not be adequately conveyed to probable users of the product, then its duty to warn may extend beyond the purchaser to those persons foreseeably endangered by the product's use.   Warnings given to the purchaser do not necessarily insulate the manufacturer from liability to injured users of the product.   Restatement (Second) of Torts § 388 & Comment n (1965);  L. Frumer & M. Friedman, 1 Products Liability § 803[3] (1980).”

In Crane v. Sears, Roebuck & Co. 218 Cal.App.2d 855, 859, 32 Cal.Rptr. 754, it was said:

“One who manufacturers a dangerous product cannot claim exemption from liability for injuries from the use of such product on the ground of merely carrying out the express orders of a third party with respect to its manufacture and labeling where the label does not give appropriate warning to the purchasing public, constituting in effect a trap for the unwary.  (Dow v. Holly Mfg. Co., 49 Cal.2d 720 [321 P.2d 736].)   In view of the latent, dangerous qualities of the surface preparer herein involved, Universal, as manufacturer, had an independent duty of determiningthat adequate warning was given to the public with respect to its use.   The facts herein presented a question for the jury to determine whether this was done.”   (Emphasis mine.)

III

The Restatement of Torts (Second) section 388 supports the rule imposing an independent duty to give an adequate warning to the downstream users or bystanders in the factual context alleged here.   Restatement of Torts section 388 (1965) reads:

“§ 388.  Chattel Known to be Dangerous for Intended Use

“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier [¶] (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and [¶] (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and [¶] (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”  (Italics added.)

Restatement (2d) of Torts § 388 describes the manufacturer's duty to warn the ultimate user of its product, while comment n to § 388 states that this duty may be discharged by an adequate warning to the intermediary through whom the chattel is supplied.   The pertinent part of comment n reads:

“In all such cases the question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.

“Giving to the third person through whom the chattel is supplied all information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability.   It is merely a means by which this information is to be conveyed to those who are to use the chattel.   The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it.  (Rest.2d Torts (1965) § 388, com. n, italics added.)

Comment “n” to Restatement Second of Torts section 388, subdivision (c) provides further:

“[When] the supplier of the chattel has reason to expect, or at least suspect, that the information will fail to reach those who are to use the chattel and whose safety depends upon their knowledge of its true character ․, the supplier may well be required to go further than to tell such a third person of the dangerous character of the article, or, if he fails to do so, to take the risk of being subjected to liability if the information is not brought home to those whom the supplier should expect to use the chattel.   In many cases the burden of doing so is slight, as when the chattel is to be used in the presence or vicinity of the person supplying it, so that he could easily give a personal warning to those who are to use the chattel.   Even though the supplier has no practicable opportunity to give this information directly and in person to those who are to use the chattel or share in its use, it is not unreasonable to require him to make good any harm which is caused by his using so unreliable a method of giving the information which is obviously necessary to make the chattel safe for those who use it and those in the vicinity of its use.

“Here, as in every case which involves the determination of the precautions which must be taken to satisfy the requirements of reasonable care, the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them (see § 291), and the magnitude of the risk is determined not only by the chance that some harm may result but also the serious or trivial character of the harm which is likely to result (see § 293).   Since the care which must be taken always increases with the danger involved, it may be reasonable to require those who supply through others chattels which if ignorantly used involve grave risk of serious harm to those who use them and those in the vicinity of their use, to take precautions to bring the information home to the users of such chattels which it would be unreasonable to demand were the chattels of a less dangerous character.”   (Emphasis mine.)

The California Supreme Court has approved (as well as have Courts of Appeal in this state) the foregoing statement of the duty to warn in the Restatement Second of Torts section 388, subsection (c) comment n.  (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 64, 107 Cal.Rptr. 45, 507 P.2d 653.)  (Selma Pressure Treating Co. v. Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, 1621, 271 Cal.Rptr. 596;  Persons v. Salomon North America (1990) 217 Cal.App.3d 168, 265 Cal.Rptr. 773.)

In Persons v. Salomon North America, supra, the court stated (p. 175, 265 Cal.Rptr. 773):

“Although comment n relates to a product liability cause of action for negligent failure to warn where the manufacturer alerted only the intermediate distributors, we conclude that its factors also should apply to failure to warn under strict liability.   Cavers and Oakes make it clear that the touchstone of liability under a strict liability cause of action for failure to warn is reasonableness and relied on concepts common to those found in negligence.  ‘As other decisions and commentators have noted, [strict] “liability based upon a failure to warn adequately of dangers [ (Rest.2d Torts (1965) § 402A, com. j, p. 353) ] is itself a doctrine borrowed from negligence.  [citation.] ” ’ ”

 We conclude:  A manufacturer of a product which the manufacturer knows or should know is dangerous by nature or is in a dangerous condition, is under a duty to give warning of those dangers to persons who it is foreseeable will come in contact with, and consequently be endangered by, that product.   The element of privity has been long discarded;  a manufacturer's warning to the immediate purchaser will not, as a general matter, discharge this duty.

 There are limits to application of these principles.  (See Carter v. Yardley & Co., 319 Mass. 92, 98, 64 N.E.2d 693 (1946).)   Thus, “a manufacturer may be absolved from blame because of a justified reliance upon ․ a middleman.”  (Id., at 99, 64 N.E.2d at p. 697.)   This exception is applicable only in the limited instances however in which the manufacturer's reliance on an intermediary is reasonable.   The question of whether it was reasonable for a defendant to rely on an intermediary, thus discharging its duty, is a question of fact.  (Restatement (Second) of Torts § 388, comment n. (1965).)  (MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475 N.E.2d 65, 69 (1985);  Hopkins v. Chip n Saw, Inc., supra, 630 F.2d 616.)

IV

 From the foregoing summary of the law relative to a manufacturer's duty to warn, we discern several fact issues presented in the record here.

1. Does the manufacturer have actual knowledge of the failure to warn or of inadequate or incorrect warning to downstream users or bystanders?   Here the allegation is that the manufacturers had actual knowledge of defective warnings by the State of California.

2. It was stated in Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1321 (7th Cir.1983):

“A manufacturer's duty to warn users or consumers about dangers in its products involves a number of distinct issues.   But there is a unifying theme as to all these issues:  the adequacy of a particular warning is a question of fact to be decided by a jury.  Schuh v. Fox River Tractor Co., 63 Wis.2d 728, 218 N.W.2d 279 (1974).  [Citations.]”

 In considering the adequacy of warning, the jury should view all of the evidence in the record, considering the nature of the product and the relative degree of danger it presents.  (Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 902 (1975).)   The clarity of any warnings that were provided is also important;  accompanying a warning with misleading representations of safety may serve to render the warning inadequate.   (Bryant v. Technical Research Co., 654 F.2d 1337, 1345–46 [9th Cir.1981].)

3. Was the manufacturer's reliance upon the State of California reasonable in light of the factual allegations of misrepresentations made by the State of California?   This is a fact issue to be determined by the trier of fact.

The foregoing factual issues were raised by the Macias pleading.   They are not susceptible to resolution by summary adjudication or summary judgment.   If the causes of action are not barred by the federal preemption doctrine, the judgment must be reversed.

V

Cyanamid next contends:

 (FIFRA), 7 U.S.C. section 136–136y (1988 & Supp. IV 1992), preempts “[a]ny failure to warn claim against American Cyanamid Company based on a theory of inadequacy of the EPA-approved labeling of malathion”;  such claims it is contended are preempted, because they would impose upon Cyanamid state law requirements for “adequate” labeling of malathion which are in addition to or different from EPA's requirements.   Cyanamid further argues preemption cannot be avoided through “artful pleading”.  “Any failure to warn claim against Cyanamid is preempted because it necessarily challenges the adequacy of the warnings or warning requirements.”

Cyanamid points out the EPA-approved labeling for its malathion concentrate did not authorize use of the pesticide against the medfly, much less require Cyanamid to provide warnings or precautionary information directly to the public regarding the State's Medfly Eradication Program.   Instead, the State obtained EPA-approved “special local needs” and “emergency exemption” supplemental labeling, which specifically required the State to notify the public about medfly eradication precautions listed on the EPA-approved label.

It is argued plaintiff's attempt to impose through state tort law an additional or different warning requirement—that Cyanamid somehow convey medfly eradication warnings and precautions directly to the public if the State did not—violates FIFRA's express prohibition against imposition of labeling requirements which are in addition to or different from EPA's and, therefore, is preempted.

Cyanamid contends its only duty to provide warnings in connection with the State's Medfly Eradication Program was to distribute malathion with its EPA-approved product labeling.   The superior court concluded that the notices were “adequate as a matter of law by reason of federal preemption pursuant to FIFRA.”  “If a pesticide manufacturer places EPA-approved warnings on the label and packaging of its product, its duty to warn is satisfied and the adequate warning issue ends.  (Citing Papas v. Upjohn Co., 985 F.2d 516, 519 [11th Cir.1993], petition for cert. filed,—U.S.L.W.—[U.S. June, 1993] [‘Papas II ’].) (Emphasis added.)”

 Without doubt under FIFRA, the federal government—through the EPA—has the sole and exclusive right to regulate pesticide labels.   While states can regulate the sale or use of federally registered pesticides, no state can impose or continue in effect any requirements for labeling or packaging of pesticides in addition to or different from those required by FIFRA.  (7 U.S.C., § 136v(b).)  (Papas v. Upjohn Co., 926 F.2d 1019, 1024 [11th Cir.1991] [“Papas I ”].)  (Emphasis added.)

To preserve the force, effect and integrity of EPA's labeling determinations, and to promote safe use by ensuring that the labeling for each individual pesticide product is uniform throughout the United States, Congress enacted section 136v(b) of FIFRA, which provides that a:

“State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA].”  (7 U.S.C., § 136v(b).)

VI

Thus section 136v(b) of FIFRA expressly preempts States from imposing labeling requirements in addition to or different from EPA's.

Several difficulties appear when one attempts to apply the Federal preemption doctrine here.   The Maciases allege that the labeling warnings required by the EPA were not given to the possibly endangered public—as the governmental agency—the State of California—was supposed to do, and that the manufacturers had actual knowledge of that delict.

It is charged that the manufacturers were aware that the actual notice sent out to the public by the downstream users—the State of California—violated the federal standards for labeling malathion by such statements as:  “No Health Hazard”, “No Damage to Pregnant Women”, “One of the Safest Insecticides”.   The breach of duty was not in the mislabeling of its products but in the failure to warn downstream bystanders when once knowledgeable of the misrepresentation by the downstream user.

VII

In this factual context we must determine whether FIFRA preempts the Maciases' state court damages action, which is based upon common law negligence—failure to warn—concepts.

FIFRA was enacted in 1947.   Like its predecessor, FIFRA as originally adopted “was primarily a licensing and labeling statute.”  (Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2866, 81 L.Ed.2d 815 (1984).)   In 1972, with growing environmental and safety concerns, Congress undertook a comprehensive revision of FIFRA through the Federal Environmental Pesticide Control Act.   86 Stat. 973.   The 1972 amendments strengthened FIFRA's registration and labeling standards.  (7 U.S.C. § 136a.)   The 1972 amendments “transformed FIFRA from a labeling law into a comprehensive regulatory statute.”  ( [Ruckelshaus] 467 U.S. at 991, 104 S.Ct. at 2867.)   (Emphasis mine.)

FIFRA specifies several roles for state and local authorities.   The statute authorizes the EPA Administrator to enter into cooperative agreements with the States to enforce FIFRA provisions.  (7 U.S.C., §§ 136u, 136w–1.)   FIFRA further directs the EPA Administrator to cooperate with “any appropriate agency of any State or any political subdivision thereof.”  (§ 136t(b).)

Of particular relevance to this case, section 136v(a) specifies that States may regulate the sale or use of pesticides so long as the state regulation does not permit a sale or use prohibited by the Act.  (§ 136v(a).)  (Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, ––––, 111 S.Ct. 2476, 2478–79, 115 L.Ed.2d 532.)

Concerning the peremptory sweep of FIFRA, the Mortier case declared:

“Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, state laws that ‘interfere with, or are contrary to the laws of congress, made in pursuance of the constitution’ are invalid.  Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.).   The ways in which federal law may pre-empt state law are well established and in the first instance turn on congressional intent.   Ingersoll¿Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990).   Congress' intent to supplant state authority in a particular field may be expressed in the terms of the statute.  Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309–1310, 51 L.Ed.2d 604 (1977).”

 Here there is no explicit preemptive language to be found in FIFRA.   Absent explicit preemptive language, the intent of Congress to supersede state law in a given area may be found implicit if a scheme of federal regulation is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” if “the Act of Congress ․ touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” or if the goals “sought to be obtained” and the “obligations imposed” reveal a purpose to preclude state authority.  (Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447.)

 Moreover, while Congress has not chosen to occupy a particular field, preemption may occur to the extent that state and federal law actually conflict.   Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” (Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)).

Concerning the authority of States, FIFRA 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.

“(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.”  (7 U.S.C. § 136v.)

In Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532, the United States Supreme Court concluded:

“FIFRA fails to provide any clear and manifest indication that Congress sought to supplant local authority over pesticide regulation impliedly.   In particular, we reject the position of some courts, but not the court below, that the 1972 amendments transformed FIFRA into a comprehensive statute that occupied the field of pesticide regulation, and that certain provisions opened specific portions of the field to state regulation and much smaller portions to local regulation.   See Professional Lawn Care [Ass'n v. Village of Milford ], 909 F.2d [929] at 933–934 [ (6th Cir.1990) ];  Maryland Pest Control [v. Montgomery County ], 646 F.Supp. [109] at 110–111 [ (D.Md.1986) ].”  (Id. 111 S.Ct. at p. 2485;  italics added.)

And continuing:

“More importantly, field pre-emption cannot be inferred.   In the first place, § 136v itself undercuts such an inference.

“․

“Nor does FIFRA otherwise imply preemption.   While the 1972 amendments turned FIFRA into a ‘comprehensive regulatory statute,’ Monsanto, 467 U.S., at 991, 104 S.Ct., at 2867, the resulting scheme was not ‘so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.’  Rice, 331 U.S. at 230, 67 S.Ct., at 1152.   To the contrary, the statute leaves ample room for States and localities to supplement federal efforts even absent the express regulatory authorization of § 136v(a).”  (Wisconsin Public Intervenor v. Mortier, supra, 501 U.S. at p. ––––, 111 S.Ct. at p. 2486;  Italics added.)

And finally:

“We hold that FIFRA does not pre-empt the town of Casey's ordinance regulating the use of pesticides.”  Wisconsin Public Intervenor v. Mortier, supra, 111 S.Ct. at 2487.

Is there an implied preemption by FIFRA?   This court has declared:

“No implied preemption is found where the impact on the subject is merely indirect.  (See, e.g., English v. General Electric Co. (1990) 496 U.S. 72 [110 S.Ct. 2270, 110 L.Ed.2d 65].)”  (People ex rel. Sepulveda v. Highland Fed. Savings & Loan (1993) 14 Cal.App.4th 1692, 1711, 19 Cal.Rptr.2d 555.)

In English v. General Electric Co. (1990) 496 U.S. 72, 110 S.Ct. 2270, 110 L.E.2d 65, the United States Supreme Court stated:

“[F]or a state law to fall within the pre-empted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels.  (Id., at p. 85 [110 S.Ct. at 2278].)”

“Also, where the subject matter is an area traditionally regulated by the states, no federal preemption is implied unless there is a clear and manifest intent shown.   Thus, there must be ‘a showing of implicit preemption of the whole field ․ strong enough to overcome the presumption that state and local regulation of health and safety matters can constitutionally coexist with federal regulation.’  (Hillsborough County v. Automated Medical Labs., [ (1985) ] supra, 471 U.S. [707,] at p. 716 [105 S.Ct. 2371, 2376, 85 L.Ed.2d 714].)”

VIII

California authorities point to the same conclusion in People v. Highland Federal Savings and Loan, 14 Cal.App.4th 1692, 1708, 19 Cal.Rptr.2d 555 stating:

“Preemption of state law by federal regulation is not favored.   We will not find express preemption unless a regulation clearly so states.  (Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co. (1981) 450 U.S. 311, 317 [101 S.Ct. 1124, 1130, 67 L.Ed.2d 258].)   It is the burden of the party claiming preemption to prove it.  (Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 548 [208 Cal.Rptr. 874, 691 P.2d 630];  Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 937 [216 Cal.Rptr. 345, 702 P.2d 503].)  (Siegel v. American Savings & Loan Assn., supra [ (1989) ] 210 Cal.App.3d 953, at p. 960 [258 Cal.Rptr. 746].)

“As pointed out in Siegel, ‘[t]he Board is capable of saying it means to expressly preempt all state law in an area ․ contains no such statement that federal law is preemptive of all state common law claims.’  (Id., at pp. 960–961 [258 Cal.Rptr. 746].)”  (Emphasis mine.)

And continuing:

“Moreover, ‘[c]omprehensiveness of federal regulation alone, is not sufficient to establish implied preemption.’ ”  (Public v. Highland Federal Savings and Loan, 14 Cal.App.4th at 1710, 19 Cal.Rptr.2d 555.

IX

We conclude in light of the foregoing authorities and the factual context alleged here, there is no federal preemption by FIFRA of the Maciases' cause of action.   There is no express language to be found in FIFRA.   The regulatory scope of FIFRA does not expressly or by implication preempt the Maciases' action.   The relief sought by the Maciases does not directly or indirectly affect the acts of the manufacturer of the pesticide as regulated by FIFRA.   No provision of FIFRA has been cited which expressly or impliedly is in conflict with the Maciases' cause of action.   Even Cyanamid concedes pursuant to the Supreme Court's decision in Mortier, “FIFRA does not occupy the whole field of pesticide regulation,” merely “the entire field of pesticide labeling.”   This is a charge of misleading the endangered public.

We therefore conclude the subject action is not barred by the federal preemption doctrine.

As noted above the State cause of action for negligence in the failure to warn rests upon a series of factual issues that cannot be resolved by summary adjudication or summary judgment.

The judgment is reversed.

Costs on appeal are awarded to plaintiffs.

I dissent on the basis that I conclude that there is no duty to warn beyond the immediate vendee of the manufacturer of the product, so long as the product is free of defects and is packaged with an appropriate warning.   I would affirm the judgment of the trial court “that Cyanamid did not have a duty to provide warnings to downstream users or buyers of malathion or bystanders regardless of its state of knowledge or alleged participation in the medfly eradication program.”   The reliance by the majority on Restatement Second of Torts section 388 (“section 388”), comment n, pages 307–310, is interesting in the abstract but as decisions of the California Supreme Court and Courts of Appeal decisions reveal, the section is difficult to apply and unworkable as a practical matter.

The majority relies on the California Supreme Court decision in Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 64, 107 Cal.Rptr. 45, 507 P.2d 653, for the proposition that section 388 has been given a stamp of approval by our high court.   However, a close reading of Stevens clearly indicates that any stamp of approval is in the form of dictum and not particularly strong dictum at best.   In Stevens, the defendant drug manufacturing company was found to have “watered down” its warnings about the precautions to be used in connection with its drug Chloromycetin and engaged in over promotion.   The “watering down” of the warning occurred before the packaged product was sold and delivered to the immediate vendee of Parke, Davis & Co.   Thus, section 388, comment n, which assumes a manufactured product which is defect free containing an appropriate warning to the immediate vendee, was never the pivotal issue in Stevens.   Our Supreme Court's reference to the section is therefore dictum.

This case, with its defect free product and sufficient warning, is distinguishable and accurately brings into play section 388, comment n, and whether it should be considered as persuasive authority for finding liability on the part of Cyanamid.   I fail to see how Stevens, a defective warning case, has a direct bearing on the factual setting in this case since the immediate vendee (the State of California) was given an adequate warning and no sale of a defective product was involved.   The majority concedes that the product (malathion) was not defective and that the warning was proper when both reached Cyanamid's immediate vendee.

The majority further cites the case of Persons v. Salomon North America, Inc. (1990) 217 Cal.App.3d 168, 265 Cal.Rptr. 773 for support in holding that section 388, comment n, is judicially recognized authority in this instance.   However, a careful reading of Persons indicates that the Court of Appeal had difficulty in applying the section and eventually ruled as a matter of law that there was no manufacturer's liability since an appropriate warning had been given.   The court determined there was no duty on the part of the manufacturer of ski bindings to one who might (downstream) marry inappropriate ski boots to the bindings.   The reasoning of the Persons court was based upon the practical consideration of no effective way to warn of the consequences thereof.   The Court of Appeal in Persons confronted the innate problem with the section, i.e., the extreme difficulty of prescribing and carrying out a warning beyond an immediate vendee.

The majority cites and relies on Selma Pressure Treating Co. v. Osmose Woods Preserving Co. (1990) 221 Cal.App.3d 1601, 1621, 271 Cal.Rptr. 596.   But Selma is a pleading case on appeal from the sustaining of a general demurrer to a complaint by the trial court.   The appellate court did not grapple with concepts above and beyond facts well pleaded in the complaint which under well established rules the appellate court found sufficient to state a cause of action.   It is true that the appellate court in Selma opined that the California Supreme Court had approved of section 388 and used the purported “approval” in reversing the trial court for having sustained the demurrer to the plaintiff's complaint.   However, I conclude that the decision in Selma is wanting for the same reasons expressed herein in connection with the discussion of Stevens.

I further would conclude that in this instance, Cyanamid had discharged its duty by giving an adequate warning to its immediate vendee (which the majority concedes) and by selling a nondefective product to its immediate vendee, the State of California.   Extending any duty to warn on the part of a manufacturer to downstream users or persons encountering the product is impractical, overly burdensome to commerce when weighed against the risks likely to be encountered, and virtually impossible to implement.   The majority might as well hold that a product which eventually ends up in the hands of a downstream vendee triggers absolute liability on the part of the manufacturer of a nondefective product which is coupled with an adequatewarning.  I find that neither the alternative of downstream policing nor the imposition of absolute liability to be commercially desirable when weighed against the risks likely to be encountered.

I would urge the California Supreme Court to take a fresh look at section 388, comment n, and to dispel any indication that a stamp of approval has been placed on the section by our high court's ruling in Stevens.

FOOTNOTES

FOOTNOTE.  

1.   The actors involved in the case include the State of California and the County of Los Angeles, and various officials of those entities;  the pesticide manufacturers who manufactured and/or distributed the malathion;  and the helicopter company that performed the spraying, San Joaquin Helicopters, Inc.   The State of California is not a party to this appeal.   It however has filed an amicus brief on behalf of the manufacturers.

2.   Juan Macias ran out to cover the family car.   He was sprayed by helicopters flying directly overhead, covering him with malathion mixed with bait.   Shortly thereafter he developed classic pesticide poisoning symptoms, such as nausea, blurry vision, and headaches, inter alia, but these symptoms went unrecognized because of his and his family's lack of awareness as to the possible side effects of contact with the spray.   His eyesight began to deteriorate, and within two months' time, he had gone legally blind.   A neuro-ophthalmologist finally confirmed that the diagnosis was organophosphate poisoning, as a result of the boy's contact with malathion.

3.   We accept as true the factual allegations of the second amended complaint in determining this appeal.

4.   The State has not however accepted responsibility for damages sustained by the Maciases.

5.   The trial court for some reason simply did not discuss the most significant and applicable section 388(c) and comment “n” thereto.

STANIFORTH,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

JOHNSON, Acting P.J., concurs.