IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-4817

_____________________

CHARLES MacDONALD, ET UX and

STATE OF LOUISIANA, Etc.,

Plaintiffs-Appellees,

versus

MONSANTO CO., ET AL.,

Defendants,

DOW CHEMICAL CO., ET AL.,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

_________________________________________________________________

(July 20, 1994)

Before JOHNSON, GARWOOD, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal raises the question of whether the labeling

requirements of the Federal Insecticide, Fungicide and

Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y (1980 & Supp.

1993), preempt parallel state law labeling requirements. Because

we find that FIFRA does indeed preempt state laws that are

"different from or in addition" to FIFRA requirements, we reverse

the district court's denial of summary judgment, and render

judgment on this issue in favor of the defendants.

I
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Plaintiff-appellee Charles MacDonald, a chemical sprayer for

the Louisiana Department of Transportation and Development,

suffered serious personal injuries allegedly caused by the

phenoxy herbicide 2,4-D, which is produced by several different

chemical companies. This herbicide was packaged in containers

bearing labels approved by the Environmental Protection Agency

("EPA") pursuant to FIFRA requirements. MacDonald and his wife

sued the chemical companies in Texas state court, claiming, inter

alia, that the chemical companies failed, under state law, to

label properly the herbicide and thereby failed, under state law,

to warn him adequately of the dangers associated with 2,4-D. The

defendants timely removed the suit to federal district court on

diversity of citizenship grounds, and then moved for summary

judgment, arguing that FIFRA preempts all state laws affecting

labeling requirements. According to the defendants, because they

complied with FIFRA labeling requirements (a fact uncontested in

this appeal), and because FIFRA preempts state labeling

requirements, they were entitled to summary judgment in their

favor on the labeling issue. The district court disagreed,

however, and denied their motion for summary judgment. The court

held that the word "requirements" in § 136v(b) addressed only

statutory or regulatory requirements--not common law

requirements. See Ferebee v. Chevron Chemical Co., 736 F.2d 1529

(D.C. Cir. 1984), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83

L.Ed.2d 432 (1984). Thus, the district court concluded that the
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MacDonald's state common law causes of action based on improper

labeling and failure to warn were not preempted by FIFRA. 

Recognizing, however, that "there were substantial grounds for

difference of opinion on the issue of preemption," the district

court certified the issue for interlocutory appeal. Defendantsappellants Chevron Chemical Company and Ortho Products Division

of Chevron Chemical Company (referred to collectively as

"Chevron"), and Dow Chemical Company ("Dow") appeal the district

court's denial of summary judgment. We granted this

interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (1993).

II

We review de novo a district court's ruling on a motion for

summary judgment. FDIC v. Myers, 955 F.2d 348, 349 (5th Cir.

1992). In this case, the parties agree that there are no

disputed fact questions; the sole issue presented for our

consideration is purely a question of law. This issue--an issue

of first impression in this circuit--is whether, under the lights

of the recently decided Cipollone v. Liggett Group, Inc., ___

U.S. ___, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), FIFRA preempts

state common law damage claims based upon a chemical

manufacturer's failure properly to label herbicides and

pesticides, and properly to warn of dangers associated with their

use.

III
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Dow and Chevron contend that FIFRA labeling requirements

preempt state law requirements that relate to labeling. The

Supremacy Clause of the Constitution invalidates any state laws

that "interfere with, or are contrary to" federal laws. U.S.

CONST. art. VI, cl. 2. Because of the Supremacy Clause, a state

law that conflicts with federal law is "without effect." 

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct.

2476, 2482, 115 L.Ed.2d 532 (1991); Maryland v. Louisiana, 451

U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981). 

We begin our consideration of preemption questions with the

presumption that historic police powers of the states are not

superseded by federal law. Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). The

police powers at issue here--health and safety matters--are

matters that historically have been areas of state regulation. 

See Hillsborough County v. Automated Medical Labs., Inc., 471

U.S. 707, 715-16, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714 (1985). 

This presumption against federal preemption of such state law may

be overcome if Congress intended that the federal law preempt

state law. Rice v. Santa Fe Elevator Corp., 331 U.S. at 230, 67

S.Ct. at 1152. As the Supreme Court recently noted in Cipollone

v. Liggett Group, Inc., 

Congress' intent may be explicitly stated in the

statute's language or implicitly contained in its

structure and purpose. In the absence of an express

congressional command, state law is pre-empted if that

law actually conflicts with federal law, or if federal
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law so thoroughly occupies a legislative field as to

make reasonable the inference that Congress left no

room for the States to supplement it.

112 S.Ct. at 2617 (internal quotations and citations omitted).

In Cipollone v. Liggett Group, Inc., the plaintiff, a woman

who ultimately died of lung cancer after years of smoking, sued

cigarette manufacturers under the state common law tort law for

failure to warn consumers of the hazards of smoking. 112 S.Ct.

at 2613. The cigarette manufacturer, however, argued that the

Public Health Cigarette Smoking Act of 1969, 15 U.S.C. §§ 1331-

1340 (1982 & Supp. 1994), preempted the state law claims. The

cigarette manufacturers based their preemption argument on §

1334(b) of the Smoking Act, which provided that "[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 the packages of which are labeled in conformity with

the provisions of this Act." 15 U.S.C. § 1334(b) (1982). The

Supreme Court held that "[t]he phrase no `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." Cipollone v. Liggett Group, Inc., 112 S.Ct. at 2620. 

The Court cautioned, however, that § 1334(b) did not preempt all

common law. For example, the Court noted that the statute

preempting state labeling requirements did not preempt state law

obligations to avoid marketing a product with a manufacturing
 

1Only four Justices joined in the portion of the opinion

that held that the Public Health Cigarette Smoking Act of 1969

preempted claims based upon state failure-to-warn claims. 

However, in his opinion concurring in part and dissenting in

part, Justice Scalia, joined by Justice Thomas, stated that he

agreed with the following language of the plurality opinion: 

"that the language of the . . . Act plainly reaches beyond

[positive] enactments; that the general tort-law duties

petitioner invokes against the cigarette companies can, as a

general matter, impose `requirements or prohibitions' within the

meaning of [§ 1334(b)]; and that the phrase `state law' as used

in [§ 1334(b)] embraces State common law. . . ." Cipollone v.

Liggett Group, Inc., 112 S.Ct. at 2634 (citations and internal

quotations omitted). Thus, the holding of the plurality opinion

that the language of § 1334(b) preempted the plaintiff's failureto-warn claim can fairly be said to constitute the view of the

Court because six members of the Court concurred in that

conclusion. See King v. E.I. Du Pont De Nemours & Co., 996 F.2d

1346, 1349 (1st Cir.), cert. dismissed, ___ U.S. ___, 114 S.Ct.

490, 126 L.Ed.2d 440 (1993); Shaw v. Dow Brands, Inc., 994 F.2d

364, 370 n.4 (7th Cir. 1993). 

 

2FIFRA governs many types of chemical substances, including

for example, herbicides, fungicides, and insecticides. 

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defect or with a design defect. Id. at 2621. Thus, according to

Cipollone, courts must compare the particular language of a

statute's preemption provision with each common law claim

asserted to determine whether the common law claim is in fact

preempted.1 Id. 

Applying the reasoning articulated in Cipollone to FIFRA and

the case at hand, the conclusion is manifest: FIFRA preempts

conflicting state common law concerning the improper labeling of

herbicides, which is the only common law claim raised in this

appeal. As opinions from other courts have described, FIFRA

provides a detailed scheme for regulating the content and format

of labels for herbicides,2 and it requires all herbicides sold in
 

3The legislative history of FIFRA also clearly indicates

that Congress intended to preempt state law in this area. 

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the United States to be registered with the EPA. See Worm v.

American Cyanamid Co., 5 F.3d 744, 747 (4th Cir. 1993)(discussing

the details of FIFRA labeling requirements); King v. E.I. Du Pont

De Nemours & Co., 996 F.2d at 1347 (discussing the details of

FIFRA labeling requirements). In an effort to preserve

uniformity of laws concerning labeling, FIFRA specifically

mandates 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 this subchapter." 7 U.S.C. §

136v(b) (Supp. 1993) (emphasis added). If the encompassing words

of the statute standing alone do not convince the skeptics,

surely Cipollone leaves no doubt but that the FIFRA term "any

requirements" makes no distinction between positive enactments

and the common law. This is not to say, however, that not all

common law is preempted by FIFRA--§ 136v(b) does not preempt

common law that is unconcerned with herbicide labeling, nor does

it preempt those state laws concerned with herbicide labeling

that do not impose any requirement "in addition to or different

from" the FIFRA requirements. See Worm v. American Cyanamid Co.,

970 F.2d 1301, 1307-08 (4th Cir. 1992). Thus, we conclude, in

accord with the clear language of the statute, that § 136v(b)

preempts only those state laws that impose or effect different or

additional labeling requirements.3
Furthermore, none of the legislative history distinguishes

legislative enactments from common law. For example, the

original House Report by the Agriculture Committee states that

"[s]tate authority to change Federal labeling and packaging is

completely preempted, and state authority to further regulate

`general use' pesticides is partially preempted." H. REP. NO.

92-511, 92d Cong., 1st Sess. 1, 1-2 (1972) (emphasis added). The

House Report further states that "[i]n dividing the

responsibilities between the States and the Federal Government

for the management of an effective pesticide program, the [House

Agriculture] Committee has adopted language which is intended to

completely preempt State authority in regard to labeling and

packaging." Id. at 16 (emphasis added). The Senate Agriculture

and Forestry Committee Report states that § 136v(b) "preempts any

State labeling or packaging requirements differing from such

requirements under the Act." S. REP. NO. 92-838, 92d Cong., 2d

Sess., reprinted in, 1972 U.S.S.C.A.N. 3993, 4021. 

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The MacDonalds argue, however, that state common law tort

judgments are not "requirements": the liable party is not

"required" to change his label by a damage award, the argument

goes, but may simply pay the judgment and leave the label as it

is. We think this argument is sophistry. If plaintiffs could

recover large damage awards because the herbicide was improperly

labeled under state law, the undeniable practical effect would be

that state law requires additional labeling standards not

mandated by FIFRA; it cannot be presumed that businesses wish to

bring about their own economic suicide. Consequently, such state

labeling requirements would violate FIFRA's express prohibition

against additional or different labeling requirements. We thus

find that the express language of FIFRA clearly indicates that

Congress intended that the federal act preempt conflicting state

law, including state common law tort claims. We are far from
 

4The dissent suggests that we have failed "to complete the

preemption analysis mandated by Cipollone" because we do not

address "whether the specific common law claims raised in the

case sub judice actually differ from or add to FIFRA's

requirements." We have, however, complied with the preemption

analysis mandated by Cipollone by determining that state law

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alone in reaching this conclusion. See King v. E.I. Du Pont De

Nemours & Co., 996 F.2d 1346 (1st Cir. 1993), cert. dismissed,

___ U.S. ___, 114 S.Ct. 490, 126 L.Ed.2d 440 (1993) (holding that

FIFRA preempts state common law causes of action); Shaw v. Dow

Brands, Inc., 994 F.2d 364 (7th Cir. 1993)(holding that FIFRA

preempts state common law causes of action); Papas v. Upjohn Co.,

985 F.2d 516 (11th Cir. 1993), cert. denied, ___ U.S. ___, 114

S.Ct. 300, 126 L.Ed.2d 248 (1993) (holding that FIFRA preempts

state common law causes of action); Arkansas-Platte & Gulf

Partnership v. Van Waters & Rogers, Inc., 981 F.2d 1177 (10th

Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 60, 126 L.Ed.2d

30 (1993) (holding that FIFRA preempts state common law causes of

action); but see Ferebee v. Chevron Chem. Co., 736 F.2d 1529

(D.C. Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83

L.Ed.2d 432 (1984)(holding that lack of direct conflict between

the state and federal regulations compels a finding that FIFRA

does not preempt state common law); see also Stamps v. Collagen

Corp., 984 F.2d 1416, 1424-25 (5th Cir.), cert. denied, ___ U.S.

___, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993) (holding that the

analysis used in Ferebee did not survive the Cipollone

decision).4 
liability based upon defective warnings would constitute an

imposition of an additional or different requirement for labeling

or packaging by the state. In other words, if the MacDonalds

could recover on their state law claim that the chemical

manufacturers failed to provide an adequate warning--despite the

fact that this herbicide's labeling had been approved by the EPA

under FIFRA standards--then those additional warnings necessarily

would be "in addition to or different from those required" by

FIFRA. Thus, it is unnecessary to compare specifically the

common law labeling requirements asserted by the MacDonalds with

FIFRA's labeling requirements. Furthermore, if, as the defense

argues, the claims of the plaintiffs concerning the labeling in

this case are "entirely consistent" with FIFRA's labeling

requirements, the plaintiffs can prove no basis for recovery

against defendants' FIFRA's approved label. Thus, comparing

FIFRA's requirements and common law requirements is a futile

exercise.

The dissent also touches upon another matter that we should

mention. To support its argument that the MacDonalds may assert

their state law tort claims, the dissent points to § 136a(f)(2),

which states that 

[i]n no event shall registration of an article be

construed as a defense for the commission of any

offense under this subchapter. As long as no

cancellation proceedings are in effect registration of

a pesticide shall be prima facie evidence that the

pesticide, its labeling and packaging comply with the

registration provisions of the subchapter.

7 U.S.C. § 136a(f)(2) (Supp. 1993) (emphasis added). This

provision, however, has no bearing on the question before this

court. As § 136a(f)(2) clearly states, it prohibits a

manufacturer from using the fact that a label is registered with

the EPA as a defense to "any offense under [FIFRA]." See 7

U.S.C. § 136j (1980 & Supp. 1993) (listing unlawful acts under

FIFRA). A claim grounded in state common law is not an offense

under FIFRA. Thus, § 136a(f)(2) does not apply. Finally, we

reiterate that the defendants' compliance with FIFRA's labeling

requirements is not disputed.

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IV

For the foregoing reasons, the decision of the district

court to deny summary judgment is REVERSED, and we REMAND for

entry of judgment accordingly. 
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R E M A N D E D for entry of judgment.

JOHNSON, J., concurring in part, dissenting in the judgment.

The majority correctly decides that the Federal Insecticide,

Fungicide and Rodenticide Act ("FIFRA") preempts both positive

enactments and common law claims which differ from or add to

FIFRA's labeling or packaging requirements. However, the majority

fails to determine whether the specific common law claims raised in

the case sub judice actually differ from or add to FIFRA's

requirements. In this writer's view, the failure to warn and

failure to adequately label claims at issue here are entirely

consistent with FIFRA. They are not preempted. 

The Supreme Court in Cipollone v. Liggett Group, Inc. made

clear that a finding that a federal statute preempts common law

actions in general is not tantamount to a finding that the statute

preempts all common law actions. 112 S. Ct. 2608, 2621 (1992).

Under the clear guidance of Cipollone, Courts must determine the

scope of a statute's preemption provision. Id. at 2618. Any state

law within the scope of the provision is preempted. However,

"matters beyond that reach are not preempted." Id. To properly

review a preemption claim, therefore, Courts must "fairly but——in

light of the strong presumption against preemption——narrowly

construe the precise language of [the preemption provision]

and . . . look to each of [the] common law claims [raised] to

determine whether [they are] in fact preempted." Id. at 2621. 
 

5I disagree with the majority's characterization of FIFRA. 

It does not establish a "detailed scheme for regulating the

content and format of labels for herbicides." See Maj. op at 6. 

While it is true that the EPA has set forth such a scheme in the

Code of Federal Regulations, a thorough review of FIFRA reveals

that no where therein did Congress authorize the EPA to establish

such a scheme. FIFRA solely provides broad, general labeling

requirements.

 

6The pesticide must also be properly classified for general

use, restricted use, or both, as outlined in § 136a(d) of the

subchapter. However, the classification requirements do not

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The preemption provision at issue here, entitled "Authority of

States," provides the following:

(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 requirement for labeling or packaging in

addition to or different from those required under this

subchapter.

7 U.S.C. § 136v(a)-(b). A fair, but narrow, reading of this

preemption section quite readily reveals Congress' intent to

restrict the comparison of state law labeling requirements to the

labeling requirements enunciated in the subchapter. 

The subchapter makes illegal the sale or distribution of "any

pesticide which is adulterated or misbranded." Id. at §

136j(a)(1)(E). FIFRA broadly defines the term "misbranded."5

Under section 136(q), a pesticide is misbranded if its "label does

not contain a warning or caution statement which may be necessary

and if complied with . . . is adequate to protect health and the

environment."6 Id. at § 136(q)(1)(G).
negate the requirement that pesticide labels contain adequate

warnings and cautions. 

 

7The state law requirements on which the MacDonalds rely

may, indeed, conflict with the EPA's labeling regulations. 

However, as explained in footnote one, those regulations were not

authorized by Congress in FIFRA. Moreover, FIFRA clearly

provides that compliance with EPA registration requirements is

not tantamount to compliance with FIFRA. See infra note 4. 

Thus, although it may conflict with the EPA's regulatory scheme,

the state law in question may, in fact, be absolutely consistent

with FIFRA's broad requirements.

 

8Congress undoubtedly anticipated that failure to warn

causes of action would be raised, for it specifically determined

that compliance with the registration requirements set forth by

the Administrator of the Environmental Protection Agency would

not conclusively establish compliance with FIFRA's labeling

requirements. 7 U.S.C. § 136a(f)(2). To the contrary, if no

cancellation proceedings are in effect, registration of a

pesticide only constitutes "prima facie evidence that the

pesticide, its labeling and packaging comply with the

registration provisions" outlined in the Act. Id.

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Consistent with FIFRA, the MacDonalds have claimed that the

labels of the pesticides in question did not contain warnings or

cautions which were adequate to protect Charles MacDonald's health.

Hence, their state law claims do not add to or differ from FIFRA's

requirements.7 Concededly, the MacDonalds must overcome the

presumption that registered pesticides comply with FIFRA's

registration provisions. However, under the plain language of the

statute, registration of a pesticide does not conclusively prove

that the pesticide was properly labeled.8 7 U.S.C. § 136a(f)(2).

By declining to determine whether the claims raised by the

MacDonalds are consistent with FIFRA's broad labeling requirements,

the majority fails to complete the preemption analysis mandated by
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Cipollone. In so doing, the majority has improperly allowed FIFRA

to trample upon state law which is entirely consistent with the

requirements set forth within the Act. Our federalism dictates

that we refrain from extending federal power into state territory

unless Congress intended such an extension. The majority pays

short shrift to the ideals of federalism and comity so salient in

this case. With such, this writer cannot agree and is therefore

constrained to dissent.