preemptive language is "as inclusive" as that of the Cigarette Act and holding that there is "no difference between the operative effect of the two acts"). Accordingly, we hold that, like the Cigarette Act, FIFRA preempts state common law actions.
In support of our holding, we note that each of the six Circuit Courts which has considered the issue post-Cippolone has concluded that the preemptive scope of § 136v(b) encompasses state common law actions. See MacDonald v. Monsanto Co., 27 F.3d 1021, 1024 (5th Cir. 1994); King v. E.I. Dupont De Nemours & Co., 996 F.2d at 1349; Worm v. American Cyanamid Co., 5 F.3d 744, 749 (4th Cir. 1993); Shaw v. Dow Brands, Inc., 994 F.2d at 371; Arkansas-Platte II, 981 F.2d at 1179; Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir.) ("Papas II "), cert. denied, 126 L. Ed. 2d 248, 114 S. Ct. 300 (1993). As mentioned above, Chief Judge Cahn of this Court also came to this conclusion. See Kenepp, 859 F. Supp. at 815.
We decline plaintiffs' invitation to adopt the pre-Cippolone holding of Ferebee. To begin with, Ferebee employed an implied preemption analysis, whereas the Supreme Court has indicated that the express preemption analysis employed in Cippolone applies to § 136v(b) of FIFRA. Moreover, Ferebee 's holding was based in part on the D.C. Circuit's reasoning that, unlike direct regulation, state common law tort actions do not necessarily conflict with federal labeling law because they do not require defendants to change their labels, leaving them free to choose to pay damage awards instead. See 736 F.2d at 1541. The Supreme Court has apparently rejected the suggestion that this distinction warrants a conclusion that positive enactments impose "requirements or prohibitions" while common law rules do not. See Cippolone, 112 S. Ct. at 2620 (explaining that like the duties imposed by positive enactments, the duties imposed by common law rules are also "requirements or prohibitions"). Accordingly, we agree with the other courts which have found that Ferebee is of questionable validity after Cippolone. See, e.g., King v. E. I. DuPont de Nemours & Co., 996 F.2d at 1351 (noting that after Cippolone and the subsequent circuit court cases interpreting § 136v(b) it was "impossible to predict" whether the D.C. Circuit would still follow Ferebee); Stamps v. Collagen Corp., 984 F.2d 1416, 1424 (5th Cir.), cert. denied, 126 L. Ed. 2d 54, 114 S. Ct. 86 (1993) ("We do not believe the [preemption] analysis [in Ferebee ] can be said to have survived Cippolone. . . ."); Shaw v. Dow Brands, Inc., 994 F.2d at 370 (finding that plaintiff's argument based on Ferebee "evaporated last summer when the Supreme Court decided Cippolone "). We therefore decline to follow its holding.
The Court also rejects plaintiffs' argument that the absence of the phrase "state law" from § 136v(b) creates a "significant and compelling" difference between that provision and the section of the Cigarette Act at issue in Cippolone.
Plaintiffs apparently contend that this "difference" warrants the conclusion that unlike the Cigarette Act, FIFRA does not bar state common law actions, but only positive enactments such as regulations or injunctions. We agree with Chief Judge Cahn's finding that "[there exists] no functional distinction between the [preemptive provisions of the two acts]. Moreover, the Cippolone Court did not suggest that the phrase 'state law' had any magic word status such that Congress' failure to include it in other statutes would be fatal to a preemption argument." Kenepp, 859 F. Supp. at 814. Rather, as stated above, the Court focused on the phrase "no requirement or prohibition," concluding that it "easily encompassed" common law rules. Cippolone, 112 S. Ct. at 2620. Consequently, we find that despite the absence of the term "state law" from § 136v(b), FIFRA's prohibition against "any requirements . . . in addition to or different from those required under this subchapter" is broad enough to preempt state common law actions.
Finally, we reject plaintiffs' argument that because the Cigarette Act mandated nationally-uniform, specifically-worded warnings, whereas FIFRA permits companies to suggest their own wording and allows for many different labels for different products, one cannot infer from FIFRA that Congress intended to preserve labeling uniformity by preempting state law. Again we agree with Chief Judge Cahn's assessment in Kenepp. See 859 F. Supp. at 814-15. When conducting an implied preemption analysis, a court may properly infer Congress's preemptive intent from a statute's apparent purpose to promote uniformity. See Jones v. Rath Packing Co., 430 U.S. at 525, 97 S. Ct. at 1309. Because FIFRA contains an express preemption provision, however, "'there is no need to infer congressional intent to pre-empt state laws from the substantive provisions' of the legislation." Cippolone, 112 S. Ct. at 2618 (quoting California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282, 107 S. Ct. 683, 690, 93 L. Ed. 2d 613 (1987) (opinion of Marshall, J.)). Thus, the question of whether or not provisions of FIFRA other than § 136v(b) are intended to produce nationally-uniform labeling is irrelevant to our inquiry.
Having held that the preemptive scope of § 136v(b) encompasses state common law actions, we next address the question of which of plaintiffs' claims in particular are preempted. We find that § 136v(b) preempts plaintiffs' negligence, strict liability, and breach of implied warranty claims, but not their breach of express warranty claim. On that claim, we grant defendants summary judgment on other grounds.
As an initial matter, we note that although the complaint contains allegations based both on defects in the product itself and on inadequate labeling/failure to warn, discovery is now over and plaintiffs have acknowledged that the crux of their complaint "involves inadequate warnings as to the use and exposure to glutaraldehyde solution."
In Cippolone, plaintiff/petitioner raised two such failure to warn claims, one based on negligence and one based on strict liability. The Supreme Court held that "insofar as claims under either failure to warn require a showing that respondents' post-1969 advertising or promotions should have included additional, or more clearly stated, warnings, those claims are pre-empted [by the Cigarette Act]." Cippolone, 112 S. Ct. at 2621-22.
Applying this analysis to the instant complaint and the language of FIFRA, we agree with the Eleventh Circuit that plaintiffs' claims,
like the failure to warn claims in Cippolone, require the finder of fact to determine whether, under state law, [defendants] adequately labelled and packaged [their] products. This inquiry is precisely what section 136v forbids. FIFRA denies states the authority to require that pesticide manufacturers conform to a state law standard of care in their labelling and packaging practices.