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COX v. VELSICOL CHEM. CORP.

February 2, 1989

Edward N. Cox, Sr. and Eileen Cox, Co-Administrators of the Estate of Kenneth Cox, deceased, and on behalf of the heirs of Kenneth Cox, deceased
v.
Velsicol Chemical Corporation



The opinion of the court was delivered by: KELLY

 ROBERT F. KELLY, UNITED STATES DISTRICT JUDGE

 The question for decision in defendant Velsicol Chemical Corporation's Motion for Summary Judgment based on Federal Preemption is whether the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y, preempts the plaintiffs' state tort claims involving failure to adequately warn.

 Plaintiffs' decedent, Kenneth Cox, was employed as a pest control operator for four different companies during limited intervals from 1977 to 1982. Plaintiffs allege that the decedent developed lung cancer as a result of exposure to chlordane products manufactured by the defendant. Specifically, Counts I and III of the complaint charge the defendant with negligence and strict liability for failing to give adequate warnings or instructions about the risks associated with the use of its products.

 FIFRA states, in relevant part, that:

 
(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(a) and (b). At first glance, the language of section (b) would seem to clearly indicate Congress' intent to preempt the states from regulating pesticide labeling. What the statute's language does not reflect, however, is the significant role the manufacturer plays in the regulatory scheme of FIFRA.

 Under FIFRA, the Environmental Protection Agency (EPA) is responsible for the registration and labeling of pesticides. FIFRA permits the EPA to register a pesticide only if the EPA makes a determination that "it will perform its intended function without unreasonable adverse effects on the environment." 7 U.S.C. § 136a(c)(5)(C). "When a pesticide is registered, the manufacturer must submit its proposed label to the EPA for approval; any changes in the label must also be approved by the EPA." Fitzgerald v. Mallinckrodt, Inc., 681 F. Supp. 404, 406 (E.D. Mich. 1987). These labels are then subject to regulations regarding warnings and precautionary statements. See 40 C.F.R. § 162.10(h) (1987).

 Unlike, for example, the Federal Cigarette and Advertising Labeling Act, 15 U.S.C. § 1331 et seq, which "prescribes the exact label of warning to be placed on each package of cigarettes," a manufacturer, pursuant to FIFRA, submits a proposed label for approval. In Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987), the Circuit Court explained the difference:

 
FIFRA, which applies to some 40,000 different herbicide and pesticide formulations, imposes an entirely different type of regulatory scheme from that established under the [Cigarette Labeling Act]. Under FIFRA, each manufacturer drafts a warning label for each product for EPA approval. Thus, two manufacturers of the same regulated product may use different labels of their own choosing, provided only that they obtain prior EPA approval. Further, [FIFRA] permits 'states to impose more stringent constraints on the use of EPA-approved pesticides than those imposed by the EPA,' indicating that Congress was indifferent to regulation of these products through state tort law. In contrast, the [Cigarette Labeling Act] explicitly (i) applies to cigarettes only; (ii) mandates the precise language of the label; and (iii) prohibits any state from regulating any aspect of cigarette warnings.

 Id. at 629, n.13 (citations omitted).

 Very likely what Congress intended through FIFRA was to set minimum standards for pesticide labeling. In Palmer, the court further explained:

 
The very fact that Congress mandated the precise wording required in a label [referring to the Cigarette Labeling Act], rather than merely establishing the 'minimum requirements' standard often found in labeling acts distinguishes the [Cigarette Labeling Act] from cases relied upon by the court and the Palmers as persuasive authority. See, e.g., Ferebee v. Chevron Chemical Co., 237 U.S. App. D.C. 164, 736 F.2d 1529 (D.C. Cir.) (involving ...

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