Papas v. Upjohn Co.

985 F.2d 516, 1993 WL 41169
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 8, 1993
DocketNo. 89-3752
StatusPublished
Cited by155 cases

This text of 985 F.2d 516 (Papas v. Upjohn Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Papas v. Upjohn Co., 985 F.2d 516, 1993 WL 41169 (11th Cir. 1993).

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before ANDERSON and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

The facts of this case are set out in Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir.1991) (“Papas I”). We must decide whether, in the light of Cipollone v. Liggett Group, Inc., 505 U.S. -, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), appellants’ state law claims against defendant Zoecon Corporation are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.A. §§ 136-136y (“FIFRA”).

Appellants Minas and Ollie Papas brought a diversity action a'gainst Zoecon Corporation seeking compensation for injuries Mr. Papas allegedly sustained due to exposure to pesticides manufactured by Zoecon. The Papases’ complaint asserted liability based on negligence, strict liability, and breach of an implied warranty of merchantability. Each of these claims was, in whole or in part, a claim of inadequate labeling for alleged dangers arising from exposure to the pesticides. Papas I, 926 F.2d at 1020.

In Papas I, we reviewed the district court’s partial grant of summary judgment in favor of defendants on the labeling claims. We affirmed, holding that‘“FIFRA impliedly preempts state common law tort suits against manufacturers of EPA-registered pesticides to the extent that such actions are based on claims of inadequate labeling.” Papas I, 926 F.2d at 1026. We confined our analysis in Papas I to the doctrine of implied preemption. Id. at 1024. Later, the Supreme Court vacated the judgment in Papas I and remanded this case to us for further consideration in the light of Cipollone v. Liggett Group, Inc., 505 U.S. -, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Papas v. Zoecon Corp., — U.S. -, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). Having looked at Cipollone, we conclude that FIFRA expressly preempts the Papases’ claims to the extent they are based on inadequate labeling or packaging.

I.

In Cipollone, the Supreme Court analyzed, for the claims in that case, the preemptive effect of the Federal Cigarette Labeling and Advertising Act, enacted in 1965 (“the 1965 Act”), and its successor, the Public Health Cigarette Smoking Act of 1969 (“the 1969 Act”). The Court found no cause to look beyond the express preemption provisions contained in section 5 of the 1965 and 1969 Acts.

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a ‘reliable indicium of congressional intent with respect to state authority,’ [citations omitted] ‘there is no need to infer congressional intent to preempt state laws from the substantive provisions’ of the legislation_ Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.

505 U.S. at -, 112 S.Ct. at 2618. The Court then analyzed the pre-emption provisions of the 1965 and 1969 Acts to decide if the provisions expressly preempted the plaintiff’s various claims. Id.

In the light of Cipollone, we will determine FIFRA’s preemptive effect on the Papases’ claims under the express pre-emption doctrine. Like the statutes at issue in Cipollone, FIFRA contains a provision explicitly addressing, and providing a reliable indicium of, state authority.1 Congress [518]*518specified the extent to which the states may regulate pesticides in FIFRA’s section 136v:

§ 136v. Authority of States
(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 sub-chapter.
(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....

7 U.S.C.A. § 136v (West 1980 & Supp. 1992). To determine FIFRA’s pre-emption of the Papases’ claims we will “only identify the domain expressly pre-empted” by FIFRA section 136v. See Cipollone, 505 U.S. at -, 112 S.Ct. at 2618.

II.

Section 136v(b) pre-empts those of the Papases’ state law claims which constitute “requirements for labeling or packaging in addition to or different from” the labeling and packaging requirements imposed under FIFRA. Cipollone convinces us that the term “requirements” in section 136v(b) “sweeps broadly and suggests no distinction between positive enactments and the common law.” Cipollone, at -, 112 S.Ct. at 2620. Common law damages awards are one form of state regulation and, as such, are “requirements” within the meaning of section 136v. See Id.; Taylor v. General Motors Corp., 875 F.2d 816, 824 n. 16 (11th Cir.1989), citing San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). To the extent that state law actions for damages depend upon a showing that a pesticide manufacturer’s “labeling or packaging” failed to meet a standard “in addition to or different from” FIFRA requirements, section 136v pre-empts the claims.

The Papases’ concede that each of their negligence, strict liability, and breach of implied warranty counts alleges in part that Zoecon failed to warn users that its product contained certain harmful chemicals and failed to inform users to take appropriate precautionary measures. Those allegations, like the failure to warn claims in Cipollone, require the finder of fact to determine whether, under state law, Zoecon adequately labelled and packaged its product. 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. Thus, to the extent that the Papases’ claims require a showing that Zoecon’s labelling or packaging “should have included additional, or more clearly stated, warnings, those claims are preempted.” See Cipollone, 505 U.S. at -, 112 S.Ct. at 2621-22. Thus the Cipollone opinion dictates, under an express pre-emption analysis, the same result we reached earlier under the implied preemption doctrine. Cf. Papas I, supra, 926 F.2d at 1026.

III.

The Papases say that they seek to prove Zoecon failed to disclose to the Environmental Protection Agency (“EPA”), the agency which administers FIFRA, that Zoe-con’s product contained benzene.

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985 F.2d 516, 1993 WL 41169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/papas-v-upjohn-co-ca11-1993.