OPINION OF THE COURT
BATES V. DOW AGROSCIENCES LLC
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-388
DENNIS BATES, et al., PETITIONERS
v.
DOW AGROSCIENCES LLC
on writ of certiorari to the united states court of
appeals for the fifth circuit
[April 27, 2005]
Justice Stevens delivered the
opinion of the Court.
Petitioners are 29 Texas peanut
farmers who allege that in the 2000 growing season their crops were
severely damaged by the application of respondent’s newly marketed
pesticide named “Strongarm.” The question presented is whether the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.
S. C. §136
et seq. (2000 ed. and Supp. II), pre-empts
their state-law claims for damages.
I
Pursuant to its authority under
FIFRA, the Environmental Protection Agency (EPA) conditionally
registered Strongarm on March 8, 2000, thereby granting respondent
(Dow) permission to sell this pesticide—a weed killer[
Footnote 1]—in the United States. Dow
obtained this registration in time to market Strongarm to Texas
farmers, who normally plant their peanut crops around May 1.
According to petitioners—whose version of the facts we assume to be
true at this stage—Dow knew, or should have known, that Strongarm
would stunt the growth of peanuts in soils with pH levels of 7.0 or
greater.[
Footnote 2]
Nevertheless, Strongarm’s label stated, “Use of Strongarm is
recommended in all areas where peanuts are grown,” App. 108, and
Dow’s agents made equivalent representations in their sales pitches
to petitioners. When petitioners applied Strongarm on their
farms—whose soils have pH levels of 7.2 or higher, as is typical in
western Texas—the pesticide severely damaged their peanut crops
while failing to control the growth of weeds. The farmers reported
these problems to Dow, which sent its experts to inspect the
crops.
Meanwhile, Dow reregistered its Strongarm
label with EPA prior to the 2001 growing season. EPA approved a
“supplemental” label that was for “[d]istribution and [u]se [o]nly
in the states of New Mexico, Oklahoma and Texas,”
id., at
179, the three States in which peanut farmers experienced crop
damage. This new label contained the following warning: “Do not
apply Strongarm to soils with a pH of 7.2 or greater.”
Id., at 181.
After unsuccessful negotiations with Dow,
petitioners gave Dow notice of their intent to bring suit as
required by the Texas Deceptive Trade Practices-Consumer Protection
Act[
Footnote 3] (hereinafter
Texas DTPA). In response, Dow filed a declaratory judgment action
in Federal District Court, asserting that petitioners’ claims were
expressly or impliedly pre-empted by FIFRA. Petitioners, in turn,
brought counterclaims, including tort claims sounding in strict
liability and negligence. They also alleged fraud, breach of
warranty, and violation of the Texas DTPA. The District Court
granted Dow’s motion for summary judgment, rejecting one claim on
state-law grounds and dismissing the remainder as expressly
pre-empted by 7 U. S. C. §136v(b), which provides that States
“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 Court of Appeals affirmed. It read
§136v(b) to pre-empt any state-law claim in which “a judgment
against Dow would induce it to alter its product label.” 332
F. 3d 323, 331 (CA5 2003). The court held that because
petitioners’ fraud, warranty, and deceptive trade practices claims
focused on oral statements by Dow’s agents that did not differ from
statements made on the product’s label, success on those claims
would give Dow a “strong incentive” to change its label. Those
claims were thus pre-empted.
Id., at 331–332. The court
also found that petitioners’ strict liability claim alleging
defective design was essentially a “disguised” failure-to-warn
claim and therefore pre-empted.
Id., at 332. It reasoned:
“One cannot escape the heart of the farmers’ grievance: Strongarm
is dangerous to peanut crops in soil with a pH level over 7.0, and
that was not disclosed to them… . It is inescapable that
success on this claim would again necessarily induce Dow to alter
the Strongarm label.”
Id.
, at 332–333. The court
employed similar reasoning to find the negligent testing and
negligent manufacture claims pre-empted as well.
Id., at
333.
This decision was consistent with those of a
majority of the Courts of Appeals,[
Footnote 4] as well of several state high courts,[
Footnote 5] but conflicted with the
decisions of other courts[
Footnote
6] and with the views of the EPA set forth in an
amicus
curiae brief filed with the California Supreme Court in
2000.[
Footnote 7] We granted
certiorari to resolve this conflict. 542 U. S. ___ (2004).
II
Prior to 1910 the States provided
the primary and possibly the exclusive source of regulatory control
over the distribution of poisonous substances. Both the Federal
Government’s first effort at regulation in this area, the
Insecticide Act of 1910, 36 Stat. 331, and FIFRA as originally
enacted in 1947, ch. 125, 61 Stat. 163, primarily dealt with
licensing and labeling. Under the original version of FIFRA, all
pesticides sold in interstate commerce had to be registered with
the Secretary of Agriculture. The Secretary would register a
pesticide if it complied with the statute’s labeling standards and
was determined to be efficacious and safe.[
Footnote 8] In 1970, EPA assumed responsibility for
this registration process.
In 1972, spurred by growing
environmental and safety concerns, Congress adopted the extensive
amendments[
Footnote 9] that
“transformed FIFRA from a labeling law into a comprehensive
regulatory statute.”
Ruckelshaus v.
Monsanto Co.,
467 U. S. 986,
991 (1984). “As amended, FIFRA regulated the use, as well as the
sale and labeling, of pesticides; regulated pesticides produced and
sold in both intrastate and interstate commerce; provided for
review, cancellation, and suspension of registration; and gave EPA
greater enforcement authority.”
Id., at 991–992. The 1972
amendments also imposed a new criterion for
registration—environmental safety.
Id., at 992. See
generally 4 F. Grad, Treatise on Environmental Law §§8.02–8.03
(2004) (tracing FIFRA’s statutory evolution).
Under FIFRA as it currently stands, a
manufacturer seeking to register a pesticide must submit a proposed
label to EPA as well as certain supporting data. 7 U. S. C.
§§136a(c)(1)(C), (F). The agency will register the pesticide if it
determines that the pesticide is efficacious (with the caveat
discussed below), §136a(c)(5)(A); that it will not cause
unreasonable adverse effects on humans and the environment,
§§136a(c)(5)(C), (D); §136(bb); and that its label complies with
the statute’s prohibition on misbranding, §136a(c)(5)(B); 40 CFR
§152.112(f) (2004). A pesticide is “misbranded” if its label
contains a statement that is “false or misleading in any
particular,” including a false or misleading statement concerning
the efficacy of the pesticide. §136(q)(1)(A); 40 CFR
§156.10(a)(5)(ii). A pesticide is also misbranded if its label does
not contain adequate instructions for use, or if its label omits
necessary warnings or cautionary statements. §§136(q)(1)(F),
(G).[
Footnote 10]
Because it is unlawful under the statute to
sell a pesticide that is registered but nevertheless misbranded,
manufacturers have a continuing obligation to adhere to FIFRA’s
labeling requirements. §136j(a)(1)(E); see also §136a(f)(2)
(registration is prima facie evidence that the pesticide and its
labeling comply with the statute’s requirements, but registration
does not provide a defense to the violation of the statute);
§136a(f)(1) (a manufacturer may seek approval to amend its label).
Additionally, manufacturers have a duty to report incidents
involving a pesticide’s toxic effects that may not be adequately
reflected in its label’s warnings, 40 CFR §§159.184(a), (b) (2004),
and EPA may institute cancellation proceedings, 7 U. S. C.
§136d(b), and take other enforcement action if it determines that a
registered pesticide is misbranded.[
Footnote 11]
Section 136v, which was added in the 1972
amendments, addresses the States’ continuing role in pesticide
regulation. As currently codified, §136v provides:
“(a) In general
“A State may regulate the sale or use of any
federally registered pesticide or device in the State, but only if
and to the extent the regulation does not permit any sale or use
prohibited by this subchapter.
“(b) Uniformity
“Such State shall not impose or continue in
effect any requirements for labeling or packaging in addition to or
different from those required under this subchapter.
“(c) Additional uses
“(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. 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… .”
In 1978, Congress once again
amended FIFRA, 92 Stat. 819, this time in response to EPA’s concern
that its evaluation of pesticide efficacy during the registration
process diverted too many resources from its task of assessing the
environmental and health dangers posed by pesticides. Congress
addressed this problem by authorizing EPA to waive data
requirements pertaining to efficacy, thus permitting the agency to
register a pesticide without confirming the efficacy claims made on
its label. §136a(c)(5). In 1979, EPA invoked this grant of
permission and issued a general waiver of efficacy review, with
only limited qualifications not applicable here. See 44 Fed. Reg.
27932 (1979); 40 CFR §158.640(b) (2004). In a notice published
years later in 1996, EPA confirmed that it had “stopped evaluating
pesticide efficacy for routine label approvals almost two decades
ago,” Pesticide Registration Notice 96–4, p. 3 (June 3, 1996),
available at www.epa.gov/opppmsd1/PR_Notices/pr96-4.html, App. 232,
and clarified that “EPA’s approval of a pesticide label does not
reflect any determination on the part of EPA that the pesticide
will be efficacious or will not damage crops or cause other
property damage.”
Id., at 5, App. 235. The notice also
referred to an earlier statement in which EPA observed that
“ ‘pesticide producers are aware that they are potentially
subject to damage suits by the user community if their products
prove ineffective in actual use.’ ”
Id., at 5, App.
230 (quoting 47 Fed. Reg. 40661 (col. 2) (1982)). This general
waiver was in place at the time of Strongarm’s registration; thus,
the EPA never passed on the accuracy of the statement in
Strongarm’s original label recommending the product’s use “in all
areas where peanuts are grown.”
Although the modern version of FIFRA was
enacted over three decades ago, this Court has never addressed
whether that statute pre-empts tort and other common-law claims
arising under state law. Courts entertained tort litigation against
pesticide manufacturers since well before the passage of FIFRA in
1947,[
Footnote 12] and such
litigation was a common feature of the legal landscape at the time
of the 1972 amendments.[
Footnote
13] Indeed, for at least a decade after those amendments,
arguments that such tort suits were pre-empted by §136v(b) either
were not advanced or were unsuccessful. See,
e.g.,
Ferebee v.
Chevron Chemical Co., 736 F. 2d
1529 (CADC 1984). It was only after 1992 when we held in
Cipollone v.
Liggett Group, Inc., 505 U. S. 504, that the
term “requirement or prohibition” in the Public Health Cigarette
Smoking Act of 1969 included common-law duties, and therefore
pre-empted certain tort claims against cigarette companies, that a
groundswell of federal and state decisions emerged holding that
§136v(b) pre-empted claims like those advanced in this
litigation.
This Court has addressed FIFRA pre-emption in
a different context. In
Wisconsin Public Intervenor v.
Mortier, 501 U. S. 597 (1991), we considered a
claim that §136v(b) pre-empted a small town’s ordinance requiring a
special permit for the aerial application of pesticides. Although
the ordinance imposed restrictions not required by FIFRA or any EPA
regulation, we unanimously rejected the pre-emption claim. In our
opinion we noted that FIFRA was not “a sufficiently comprehensive
statute to justify an inference that Congress had occupied the
field to the exclusion of the States.”
Id., at 607. “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).”
Id., at 613.
As a part of their supplementary role, States
have ample authority to review pesticide labels to ensure that they
comply with both federal and state labeling requirements.[
Footnote 14] Nothing in the text of
FIFRA would prevent a State from making the violation of a federal
labeling or packaging requirement a state offense, thereby imposing
its own sanctions on pesticide manufacturers who violate federal
law. The imposition of state sanctions for violating state rules
that merely duplicate federal requirements is equally consistent
with the text of §136v.
III
Against this background, we
consider whether petitioners’ claims[
Footnote 15] are pre-empted by §136v(b), which, again,
reads as follows: “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.”
The introductory words of
§136v(b)—“Such State”—appear to limit the coverage of that
subsection to the States that are described in the preceding
subsection (a). Texas is such a State because it regulates the sale
and use of federally registered pesticides and does not permit any
sales or uses prohibited by FIFRA. It is therefore beyond dispute
that subsection (b) is applicable to this case.
The prohibitions in §136v(b) apply only to
“requirements.” An occurrence that merely motivates an optional
decision does not qualify as a requirement. The Court of Appeals
was therefore quite wrong when it assumed that any event, such as a
jury verdict, that might “induce” a pesticide manufacturer to
change its label should be viewed as a requirement. The Court of
Appeals did, however, correctly hold that the term “requirements”
in §136v(b) reaches beyond positive enactments, such as statutes
and regulations, to embrace common-law duties. Our decision in
Cipollone supports this conclusion. See 505 U. S., at 521
(plurality opinion) (“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”); see
also
id., at 548–549 (Scalia, J., concurring in judgment
in part and dissenting in part). While the use of “requirements” in
a pre-emption clause may not invariably carry this meaning, we
think this is the best reading of §136v(b).
That §136v(b) may pre-empt judge-made rules,
as well as statutes and regulations, says nothing about the
scope of that pre-emption. For a particular state rule to
be pre-empted, it must satisfy two conditions. First, it must be a
requirement “
for labeling or packaging”; rules governing
the design of a product, for example, are not pre-empted. Second,
it must impose a labeling or packaging requirement that is “
in
addition to or different from those required under this
subchapter.” A state regulation requiring the word “poison” to
appear in red letters, for instance, would not be pre-empted if an
EPA regulation imposed the same requirement.
It is perfectly clear that many of the
common-law rules upon which petitioners rely do not satisfy the
first condition. Rules that require manufacturers to design
reasonably safe products, to use due care in conducting appropriate
testing of their products, to market products free of manufacturing
defects, and to honor their express warranties or other contractual
commitments plainly do not qualify as requirements for “labeling or
packaging.” None of these common-law rules requires that
manufacturers label or package their products in any particular
way. Thus, petitioners’ claims for defective design, defective
manufacture, negligent testing, and breach of express warranty are
not pre-empted.
To be sure, Dow’s express warranty was located
on Strongarm’s label.[
Footnote
16] But a cause of action on an express warranty asks only that
a manufacturer make good on the contractual commitment that it
voluntarily undertook by placing that warranty on its
product.[
Footnote 17]
Because this common-law rule does not require the manufacturer to
make an express warranty, or in the event that the manufacturer
elects to do so, to say anything in particular in that warranty,
the rule does not impose a requirement “for labeling or packaging.”
See
id., at 525–526 (plurality opinion).[
Footnote 18]
In arriving at a different conclusion, the
court below reasoned that a finding of liability on these claims
would “induce Dow to alter [its] label.” 332 F. 3d, at
332.[
Footnote 19] This
effects-based test finds no support in the text of §136v(b), which
speaks only of “requirements.” A requirement is a rule of law that
must be obeyed; an event, such as a jury verdict, that merely
motivates an optional decision is not a requirement. The proper
inquiry calls for an examination of the elements of the common-law
duty at issue, see
Cipollone, 505 U. S., at 524; it does
not call for speculation as to whether a jury verdict will prompt
the manufacturer to take any particular action (a question, in any
event, that will depend on a variety of cost/benefit calculations
best left to the manufacturer’s accountants).
The inducement test is unquestionably
overbroad because it would impeach many “genuine” design defect
claims that Dow concedes are not pre-empted. A design defect claim,
if successful, would surely induce a manufacturer to alter its
label to reflect a change in the list of ingredients or a change in
the instructions for use necessitated by the improvement in the
product’s design. Moreover, the inducement test is not entirely
consistent with §136v(a), which confirms the State’s broad
authority to regulate the sale and use of pesticides.[
Footnote 20] Under §136v(a), a state
agency may ban the sale of a pesticide if it finds, for instance,
that one of the pesticide’s label-approved uses is unsafe. This ban
might well induce the manufacturer to change its label to warn
against this questioned use. Under the inducement test, however,
such a restriction would anomalously qualify as a “labeling”
requirement. It is highly unlikely that Congress endeavored to draw
a line between the type of indirect pressure caused by a State’s
power to impose sales and use restrictions and the even more
attenuated pressure exerted by common-law suits. The inducement
test is not supported by either the text or the structure of the
statute.
Unlike their other claims, petitioners’ fraud
and negligent-failure-to-warn claims are premised on common-law
rules that qualify as “requirements for labeling or packaging.”
These rules set a standard for a product’s labeling that the
Strongarm label is alleged to have violated by containing false
statements and inadequate warnings. While the courts of appeal have
rightly found guidance in
Cipollone’s interpretation of
“requirements,” some of those courts too quickly concluded that
failure-to-warn claims were pre-empted under FIFRA, as they were in
Cipollone, without paying attention to the rather obvious
textual differences between the two pre-emption clauses.[
Footnote 21]
Unlike the pre-emption clause at issue in
Cipollone,[
Footnote
22] §136v(b) prohibits only state-law labeling and packaging
requirements that are “
in addition to or different from”
the labeling and packaging requirements under FIFRA. Thus, a
state-law labeling requirement is not pre-empted by §136v(b) if it
is equivalent to, and fully consistent with, FIFRA’s misbranding
provisions. Petitioners argue that their claims based on fraud and
failure-to-warn are not pre-empted because these common-law duties
are equivalent to FIFRA’s requirements that a pesticide label not
contain “false or misleading” statements, §136(q)(1)(A), or
inadequate instructions or warnings. §§136(q)(1)(F), (G). We agree
with petitioners insofar as we hold that state law need not
explicitly incorporate FIFRA’s standards as an element of a cause
of action in order to survive pre-emption. As we will discuss
below, however, we leave it to the Court of Appeals to decide in
the first instance whether these particular common-law duties are
equivalent to FIFRA’s misbranding standards.
The “parallel requirements” reading of
§136v(b) that we adopt today finds strong support in
Medtronic,
Inc. v.
Lohr,
518 U. S. 470 (1996). In
addressing a similarly worded pre-emption provision in a statute
regulating medical devices, we found that “[n]othing in [21 U.
S. C.] §360k denies Florida the right to provide a traditional
damages remedy for violations of common-law duties when those
duties parallel federal requirements.”
Id., at
495.[
Footnote 23] As Justice
O’Connor explained in her separate opinion, a state cause of action
that seeks to enforce a federal requirement “does not impose a
requirement that is ‘different from, or in addition to,’
requirements under federal law. To be sure, the threat of a damages
remedy will give manufacturers an additional cause to comply, but
the requirements imposed on them under state and federal law do not
differ. Section 360k does not preclude States from imposing
different or additional
remedies, but only different or
additional
requirements.”
Id., at 513 (opinion
concurring in part and dissenting in part). Accordingly, although
FIFRA does not provide a federal remedy to farmers and others who
are injured as a result of a manufacturer’s violation of FIFRA’s
labeling requirements, nothing in §136v(b) precludes States from
providing such a remedy.
Dow, joined by the United States as
amicus
curiae, argues that the “parallel requirements” reading of
§136v(b) would “give juries in 50 States the authority to give
content to FIFRA’s misbranding prohibition, establishing a
crazy-quilt of anti-misbranding requirements different from the one
defined by FIFRA itself and intended by Congress to be interpreted
authoritatively by EPA.” Brief for Respondent 16; see also Brief
for United States as
Amicus Curiae 25–27. In our view,
however, the clear text of §136v(b) and the authority of
Medtronic cannot be so easily avoided. Conspicuously
absent from the submissions by Dow and the United States is any
plausible alternative interpretation of “in addition to or
different from” that would give that phrase meaning. Instead, they
appear to favor reading those words out of the statute, which would
leave the following: “Such State shall not impose or continue in
effect any requirements for labeling or packaging.” This amputated
version of §136v(b) would no doubt have clearly and succinctly
commanded the pre-emption of
all state requirements
concerning labeling. That Congress added the remainder of the
provision is evidence of its intent to draw a distinction between
state labeling requirements that are pre-empted and those that are
not.
Even if Dow had offered us a plausible
alternative reading of §136v(b)—indeed, even if its alternative
were just as plausible as our reading of that text—we would
nevertheless have a duty to accept the reading that disfavors
pre-emption. “[B]ecause the States are independent sovereigns in
our federal system, we have long presumed that Congress does not
cavalierly pre-empt state-law causes of action.”
Medtronic, 518 U. S., at 485. In areas of traditional
state regulation, we assume that a federal statute has not
supplanted state law unless Congress has made such an intention
“ ‘clear and manifest.’ ”
New York State Conference
of Blue Cross & Blue Shield Plans v.
Travelers Ins.
Co., 514 U. S.
645, 655 (1995) (quoting
Rice v.
Santa Fe
Elevator Corp.,
331 U. S. 218, 230
(1947)); see also
Medtronic, 518 U. S., at 485. Our
reading is at once the only one that makes sense of each phrase in
§136v(b) and the one favored by our canons of interpretation. The
notion that FIFRA contains a nonambiguous command to pre-empt the
types of tort claims that parallel FIFRA’s misbranding requirements
is particularly dubious given that just five years ago the United
States advocated the interpretation that we adopt today.[
Footnote 24]
The long history of tort litigation against
manufacturers of poisonous substances adds force to the basic
presumption against pre-emption. If Congress had intended to
deprive injured parties of a long available form of compensation,
it surely would have expressed that intent more clearly. See
Silkwood v.
Kerr-McGee Corp.,
464 U. S. 238, 251
(1984).[
Footnote 25]
Moreover, this history emphasizes the importance of providing an
incentive to manufacturers to use the utmost care in the business
of distributing inherently dangerous items. See
Mortier,
501 U. S., at 613 (stating that the 1972 amendments’ goal was to
“strengthen existing labeling requirements and ensure that these
requirements were followed in practice”). Particularly given that
Congress amended FIFRA to allow EPA to waive efficacy review of
newly registered pesticides (and in the course of those amendments
made technical changes to §136v(b)), it seems unlikely that
Congress considered a relatively obscure provision like §136v(b) to
give pesticide manufacturers virtual immunity from certain forms of
tort liability. Overenforcement of FIFRA’s misbranding prohibition
creates a risk of imposing unnecessary financial burdens on
manufacturers; under-enforcement creates not only financial risks
for consumers, but risks that affect their safety and the
environment as well.
Finally, we find the policy objections raised
against our reading of §136v(b) to be unpersuasive. Dow and the
United States greatly overstate the degree of uniformity and
centralization that characterizes FIFRA. In fact, the statute
authorizes a relatively decentralized scheme that preserves a broad
role for state regulation. See
id., at 613. Most
significantly, States may ban or restrict the uses of pesticides
that EPA has approved, §136v(a); they may also register, subject to
certain restrictions, pesticides for uses beyond those approved by
EPA, §136v(c). See also §136w–1 (authorizing EPA to grant States
primary enforcement responsibility for use violations). A literal
reading of §136v(b) is fully consistent with the concurrent
authority of the Federal and State Governments in this sphere.
Private remedies that enforce federal
misbranding requirements would seem to aid, rather than hinder, the
functioning of FIFRA. Unlike the cigarette labeling law at issue in
Cipollone, which prescribed certain immutable warning
statements, FIFRA contemplates that pesticide labels will evolve
over time, as manufacturers gain more information about their
products’ performance in diverse settings. As one court explained,
tort suits can serve as a catalyst in this process:
“By encouraging plaintiffs to bring suit for
injuries not previously recognized as traceable to pesticides such
as [the pesticide there at issue], a state tort action of the kind
under review may aid in the exposure of new dangers associated with
pesticides. Successful actions of this sort may lead manufacturers
to petition EPA to allow more detailed labelling of their products;
alternatively, EPA itself may decide that revised labels are
required in light of the new information that has been brought to
its attention through common law suits. In addition, the specter of
damage actions may provide manufacturers with added dynamic
incentives to continue to keep abreast of all possible injuries
stemming from use of their product so as to forestall such actions
through product improvement.”
Ferebee, 736 F. 2d, at
1541–1542.
Dow and the United States
exaggerate the disruptive effects of using common-law suits to
enforce the prohibition on misbranding. FIFRA has prohibited
inaccurate representations and inadequate warnings since its
enactment in 1947, while tort suits alleging failure-to-warn claims
were common well before that date and continued beyond the 1972
amendments. We have been pointed to no evidence that such tort
suits led to a “crazy-quilt” of FIFRA standards or otherwise
created any real hardship for manufacturers or for EPA. Indeed, for
much of this period EPA appears to have welcomed these tort suits.
While it is true that properly instructed juries might on occasion
reach contrary conclusions on a similar issue of misbranding, there
is no reason to think such occurrences would be frequent or that
they would result in difficulties beyond those regularly
experienced by manufacturers of other products that everyday bear
the risk of conflicting jury verdicts. Moreover, it bears noting
that lay juries are in no sense anathema to FIFRA’s scheme: In
criminal prosecutions for violation of FIFRA’s provisions, see
§136
l(b), juries necessarily pass on allegations of
misbranding.
In sum, under our interpretation, §136v(b)
retains a narrow, but still important, role. In the main, it
pre-empts competing state labeling standards—imagine 50 different
labeling regimes prescribing the color, font size, and wording of
warnings—that would create significant inefficiencies for
manufacturers.[
Footnote 26]
The provision also pre-empts any statutory or common-law rule that
would impose a labeling requirement that diverges from those set
out in FIFRA and its implementing regulations. It does not,
however, pre-empt any state rules that are fully consistent with
federal requirements.
Having settled on our interpretation of
§136v(b), it still remains to be decided whether that provision
pre-empts petitioners’ fraud and failure-to-warn claims. Because we
have not received sufficient briefing on this issue,[
Footnote 27] which involves questions of
Texas law, we remand it to the Court of Appeals. We emphasize that
a state-law labeling requirement must in fact be equivalent to a
requirement under FIFRA in order to survive pre-emption. For
example, were the Court of Appeals to determine that the element of
falsity in Texas’ common-law definition of fraud imposed a broader
obligation than FIFRA’s requirement that labels not contain “false
or misleading statements,” that state-law cause of action would be
pre-empted by §136v(b) to the extent of that difference. State-law
requirements must also be measured against any relevant EPA
regulations that give content to FIFRA’s misbranding standards. For
example, a failure-to-warn claim alleging that a given pesticide’s
label should have stated “DANGER” instead of the more subdued
“CAUTION” would be pre-empted because it is inconsistent with 40
CFR §156.64 (2004), which specifically assigns these warnings to
particular classes of pesticides based on their toxicity.[
Footnote 28]
In undertaking a pre-emption analysis at the
pleadings stage of a case, a court should bear in mind the concept
of equivalence. To survive pre-emption, the state-law requirement
need not be phrased in the
identical language as its
corresponding FIFRA requirement; indeed, it would be surprising if
a common-law requirement used the same phraseology as FIFRA. If a
case proceeds to trial, the court’s jury instructions must ensure
that nominally equivalent labeling requirements are
genuinely equivalent. If a defendant so requests, a court
should instruct the jury on the relevant FIFRA misbranding
standards, as well as any regulations that add content to those
standards. For a manufacturer should not be held liable under a
state labeling requirement subject to §136v(b) unless the
manufacturer is also liable for misbranding as defined by
FIFRA.
The judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Footnote 1
Strongarm would more commonly be called a
herbicide, but it is classified as a pesticide for purposes of
FIFRA. See 7 U. S. C. §§136(t), (u).
Footnote 2
The term “pH,” which stands for pondus
hydrogenii, or “potential hydrogen,” refers to the acidity of the
soil.
Footnote 3
Tex. Bus. & Com. Code Ann. §17.01
et
seq. (West 2002).
Footnote 4
See,
e.g.,
Grenier v.
Vermont Log Buildings, Inc., 96 F. 3d 559 (CA1 1996);
Kuiper v.
American Cyanamid Co., 131 F. 3d
656 (CA7 1997);
Netland v.
Hess & Clark,
Inc., 284 F. 3d 895 (CA8 2002).
Footnote 5
See,
e.g.,
Etcheverry v.
Tri-Ag Service, Inc., 22 Cal. 4th 316, 993 P. 2d 366
(2000).
Footnote 6
See,
e.g.,
Ferebee v.
Chevron Chemical Co., 736 F. 2d 1529 (CADC 1984);
American Cyanamid Co. v.
Geye, 79 S. W. 3d
21 (Tex. 2002).
Footnote 7
See Brief
Amicus Curiae for United
States in
Etcheverry v.
Tri-Ag Serv.,
Inc., No. S072524 (Cal. Sup. Ct.) (hereinafter Brief
Amicus Curiae for United States in
Etcheverry).
The Solicitor General has since adopted a contrary position. See
Brief for United States as
Amicus Curiae 20.
Footnote 8
If the Secretary declined registration, and
the manufacturer refused to make changes, the Secretary was
required to register the pesticide “under protest.” In 1964,
however, Congress eliminated this procedure, and required
disappointed manufacturers to challenge a denial of registration
through administrative review. 78 Stat. 190.
Footnote 9
Federal Environmental Pesticide Control Act
of 1972, 86 Stat. 973.
Footnote 10
A pesticide label must also conspicuously
display any statement or information specifically required by the
statute or its implementing regulations. §136(q)(1)(E). To mention
only a few examples, the label must contain the name and address of
the producer, the product registration number, and an ingredient
statement. 40 CFR §§156.10(a)(1)(ii), (iv), (vi) (2004).
Footnote 11
EPA may issue “stop sale, use, or removal”
orders and may seize offending products. §§136k(a), (b). Further,
manufacturers may be subjected to civil and criminal penalties for
violating FIFRA’s requirements. §136
l.
Footnote 12
See,
e.g.,
Mossrud v.
Lee, 163 Wis. 229, 157 N. W. 758 (1916);
West
Disinfecting Co. v.
Plummer, 44 App. D. C. 345
(1916);
McCrossin v.
Noyes Bros. & Cutler,
Inc., 143 Minn. 181, 173 N. W. 566 (1919);
White v.
National Bank of Commerce, 99 Cal. App.
519, 278 P. 915 (1929).
Footnote 13
See Hursh, Annotation, Liability of
Manufacturer or Seller for Injury Caused by Animal Feed or
Medicines, Crop Sprays, Fertilizers, Insecticides, Rodenticides,
and Similar Products, 81 A. L. R. 2d 138, 144 (1962) (“A
duty of due, reasonable care binds manufacturers and sellers of
products of this kind. This duty of care includes a duty to warn of
product-connected dangers, a duty on the part of the manufacturer
to subject the product to reasonable tests, and a duty on the part
of the seller to subject the product to reasonable inspection”
(footnotes omitted)) (collecting cases).
Footnote 14
As the EPA’s Website explains, “Federal law
requires that before selling or distributing a pesticide in the
United States, a person or company must obtain registration, or
license, from EPA… . Most states conduct a review of the
pesticide label to ensure that it complies with federal labeling
requirements and any additional state restrictions of use.” EPA,
Pesticides: Regulating Pesticides, Evaluating Potential New
Pesticides and Uses,
http://www.epa.gov/pesticides/regulating/index.htm (all Internet
materials as visited Apr. 6, 2005, and available in the Clerk of
Court’s case file). See also F. Grad, Treatise on Environmental Law
§8.05, p. 8–140 (2004) (“All the state[s] have some labeling
requirements for pesticides, and these generally parallel [FIFRA]
of 1947”);
id.
, at 8–143 to 8–218 (reviewing the
pesticide statutes of the 50 States).
Footnote 15
The briefing and the record leave some
confusion as to what precise claims are at issue. In light of
the posture of this case, we find it appropriate to address the
following claims: breach of express warranty, fraud, violation of
the Texas DTPA, strict liability (including defective design and
defective manufacture), and negligent testing. We will also address
negligent failure to warn, since the Court of Appeals read
petitioners’ allegations to support such a claim. But because
petitioners do not press such a claim here, we leave it to the
court below to determine whether they may proceed on such a claim
on remand. Of course, we express no view as to whether any of these
claims are viable as a matter of Texas law. Nor do we, given the
early stage of this litigation, opine on whether petitioners can
adduce sufficient evidence in support of their claims to survive
summary judgment.
Footnote 16
The label stated: “Dow AgroSciences warrants
that this product conforms to the chemical description on the label
and is reasonably fit for the purposes stated on the label when
used in strict accordance with the directions, subject to the
inherent risks set forth below.” App. 111.
Footnote 17
To the extent that petitioners’ warranty and
fraud claims are based on oral representations made by Dow’s
agents, they fall outside the text of §136v(b) for an independent
reason. Because FIFRA defines labeling as “all labels and all other
written, printed, or graphic matter” that accompany a pesticide,
§136(p)(2), any requirement that applied to a sales agent’s
oral representations would not be a requirement for
“labeling or packaging.”
Footnote 18
The Court of Appeals held that petitioners’
claim under the Texas DTPA was pre-empted insofar as the Act
provides a remedy for the breach of an express warranty. 332
F. 3d 323, 332 (CA5 2003) (citing Texas law). Because
petitioners’ warranty claim is not pre-empted, their claim under
the Act is not pre-empted to that extent.
Footnote 19
Other Courts of Appeal have taken a similar
approach. See,
e.g.,
Netland, 284 F. 3d, at
900 (“Thus, our task is to determine whether Netland’s claims are
essentially a challenge to Bovinol’s label or the overall design of
the pesticide. To guide our analysis, we must ask whether in
seeking to avoid liability for any error, would the manufacturer
choose to alter the label or the product”).
Footnote 20
In
Wisconsin Public Intervenor v.
Mortier, 501 U. S. 597 (1991), we noted that
§136v(a) is merely declaratory of the authority that the States
retained after FIFRA; that provision did not “serve to hand back to
the States powers that the statute had impliedly usurped.”
Id., at 614.
Footnote 21
See,
e.g.,
Taylor AG
Industries v.
Pure-Gro, 54 F. 3d 555, 559 (CA9
1995) (“There is no notable difference between the language in the
1969 Cigarette Act and the language in FIFRA”);
Shaw v.
Dow Brands,
Inc., 994 F. 2d 364, 371 (CA7
1993) (“Not even the most dedicated hair-splitter could distinguish
these statements”).
Footnote 22
“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].”
15 U. S. C. §1334(b);
Cipollone, 505 U. S., at
515.
Footnote 23
We added: “Even if it may be necessary as a
matter of Florida law to prove that those violations were the
result of negligent conduct, or that they created an unreasonable
hazard for users of the product, such additional elements of the
state-law cause of action would make the state requirements
narrower, not broader, than the federal requirement. While such a
narrower requirement might be ‘different from’ the federal rules in
a literal sense, such a difference would surely provide a strange
reason for finding pre-emption of a state rule insofar as it
duplicates the federal rule.” 518 U. S., at 495.
Footnote 24
Brief
Amicus Curiae for United
States in
Etcheverry 33–35. See also Brief for United
States as
Amicus Curiae 20 (explaining its subsequent
change in view).
Footnote 25
It is no answer that, even if all
label-related claims are pre-empted under Dow’s reading, other
non-label-related tort claims would remain intact. Given the
inherently dangerous nature of pesticides, most safety gains are
achieved not through modifying a pesticide’s design, but by
improving the warnings and instructions contained on its label. See
Brief for American Chemistry Council as
Amicus Curiae
3.
Footnote 26
The legislative history of the 1972
amendments suggests that Congress had conflicting state labeling
regulations in mind when crafting §136v(b). As one industry
representative testified: “Some States might want the word
‘flammable,’ some ‘inflammable.’ … Some States might want red
lettering; others orange, another yellow, and so forth. We ask this
committee, therefore, to recognize, as the Congress has in a number
of similar regulatory statutes, the industry’s need for uniformity
by providing for this in the act.” Hearings on Federal Pesticide
Control Act of 1971 before the House Committee on Agriculture, 92d
Cong., 1st Sess., 281–283 (1971) (statement of Robert L. Ackerly).
By contrast, the lengthy legislative history is barren of any
indication that Congress meant to abrogate most of the common-law
duties long owed by pesticide manufacturers.
Footnote 27
Dow does not seem to argue that, by their
terms, Texas’s fraud and failure-to-warn causes of action are not
equivalent to FIFRA’s misbranding standards. Nor has Dow identified
any EPA regulations that further refine those general standards in
any way that is relevant to petitioners’ allegations. Rather, Dow
has chosen to mount a broader attack on the “parallel requirements”
interpretation, thus seeming to argue for the pre-emption of even a
state-law cause of action that
expressly incorporates
FIFRA's misbranding provisions. See Brief for Respondent 38, n. 25.
Since Dow did not have the benefit of our construction of §136v(b),
Dow should be allowed to address these matters on remand.
Footnote 28
At present, there appear to be relatively few
regulations that refine or elaborate upon FIFRA’s broadly phrased
misbranding standards. To the extent that EPA promulgates such
regulations in the future, they will necessarily affect the scope
of pre-emption under §136v(b).
Comments
Be the first to comment
Leave a Comment