The issue in this case, on appeal from the United States District Court for the District of Maine,
I
The plaintiffs, King and Higgins (and their wives) filed this diversity tort damage suit against four manufacturers of chemical herbicides. Their second amended complaint alleged that, as part of their duties as employees of the State of Maine, King and Higgins were engaged in the “seasonal spraying of chemical herbicides”; that “[d]uring the chemical spraying operations [they] performed,” King and Higgins “were exposed to significant amounts” of specified “chemical products” manufactured by the defendants; and that, “as the direct result of their exposure to the herbicides,” King and Higgins have suffered various ailments.
The complaint contained two counts. Count I charged the defendants -with negligence because they “failed to warn the Plaintiffs ... of the harm and danger of exposure to the chemical products listed above, failed to advise them how to safely use the products and failed to warn them of the long term, permanent physical injuries which would follow said exposure.” Count II alleged strict liability and tort theories, based upon the defendants having “placed into the stream of commerce unreasonably dangerous and defective chemical products, rendered unreasonably dangerous by the absence of an adequate warning to the ultimate consumers and users thereof of the short term and long term permanent physical injuries resulting from exposure thereto.” At oral argument, the plaintiffs admitted that the sole basis of their complaint was the defendants’ failure to provide adequate warnings.
The parties stipulated that the labels on all the herbicides involved had been submitted to and approved by the EPA, as FIFRA required.
The district court granted the defendants’ motion for summary judgment, holding that FIFRA preempted the plaintiffs’ claims.
Because the language of FIFRA mandates the preemption of the establishment or enforcement or any common law duty that would impose a labeling requirement inconsistent with those established by the Act, or the EPA’s regulations, Plaintiffs’ common law failure to warn claims are preempted as a matter of law.
II
A. FIFRA provides a detailed scheme for regulating the content of an herbicide’s label. Ml herbicides sold in the United States must be registered for use by the EPA. 7 U.S.C. § 136a(a). The EPA has promulgated comprehensive labeling requirements governing the scope, content, wording and format of herbicide labeling. 40 C.F.R. § 156 (1992). The manufacturer itself designs and formulates the content of the label, and must file with the EPA a statement which includes “the name of the pesticide,” “a complete copy of the labeling of the pesticide, a statement of all claims to be made for it and any directions for its use,” and “a full description of the tests made and the results thereof upon which the claims are based.” 7 U.S.C. § 136a(e)(l)(B)-(D).
*1348 Section 136v provides in pertinent part:
(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 subehapter.
Id. § 136v.
B. Cipollone recently summarized the standards governing preemption analysis:
The purpose of Congress is the ultimate touchstone of preemption analysis.
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 law so thoroughly occupies a- legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.
Cipollone,
— U.S. at-,
Cipollone
involved similar preemption provisions of the federal statutes governing cigarette labelling and advertising. The suit concerned a woman who died of lung cancer after smoking
for many years.
It was a state tort law diversity suit against the cigarette manufacturers, charging them with responsibility for her death because, among other things, “they failed to warn consumers about the hazards of smoking.” Id. at-,
Section 5 of the 1965 Act, captioned “Preemption,” provided in relevant part:
(b) No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.
Federal Cigarette Labelling and Advertising Act,
quoted in Cipollone,
— U.S. at-,
The Court held that this provision “only pre-empted state and federal rulemaking bodies from mandating particular cautionary statements and did not pre-empt state law damages actions.”
Cipollone,
— U.S. at -,
This provision was changed by the 1969 Act to read:
(b) 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.
Public Health Cigarette Smoking Act of 1969,
quoted in Cipollone,
— U.S. at-,
The Court held that this provision preempted the plaintiffs state law tort claims based on the defendants’ failure to warn of the hazards of cigarette smoking. The Court stated that “[t]he 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.”
Cipollone,
—— U.S. at-,
Only four Justices joined in the portion of the opinion that held that the 1969 Act preempted the failure to warn tort claims. In his opinion concurring in the judgment in part and dissenting in part (in which Justice Thomas joined), however, Justice Scalia stated that he “agree[dj” with the following statements in the plurality opinion: “that ‘the language of the [1969] Act plainly reaches beyond [positive] enactments,’; that the general tort-law duties petitioner invokes against the cigarette companies can, as a general matter, impose ‘requirement[s] or prohibition^]’ within the meaning of § 5(b) of the 1969 Act; and that the phrase ‘State law’ as used in that provision embraces state common law.”
Id.
at ——,
In these circumstances, the holding in the plurality opinion that the 1969 Act preempted the plaintiff s'failure-to-warn claim fairly can be said to constitute the view of the Court because six members of the Court concurred in that conclusion.
See Shaw v. Dow Brands, Inc.,
The Supreme Court itself has indicated that Cipollone applies to FIFRA preemption determinations. In the Papas v. Upjohn Co. and Arkansas-Platte cases discussed below, the Court vacated two courts of appeals judgments that FIFRA impliedly preempted state law failure-to-warn claims and remanded for those courts to reconsider their decisions in light of Cipollone.
B. We hold that, in light of Cipollone, FIFRA preempts the plaintiffs’ state law tort claims based on the defendants’ alleged failure to provide adequate warnings about the health hazards of the herbicides they manufactured and sold.
The warnings on the labels of the herbicides King and Higgins used in spraying were approved by the EPA, as FIFRA required. If the plaintiffs could recover on their state law claims that, despite this labeling, the defendants had failed to provide adequate warning, those additional warnings necessarily would be “in addition to or different from those required under this subchap-ter.” 7 U.S.C. § 136v(b). The question, therefore, is whether state law liability based upon such defective warning would constitute the “imposfition]” by the state of “any requirements for labeling or packaging” under section 136v(b). Id.
Cipollone
held that the words in the 1969 cigarette statute “ ‘[n]o requirement or prohibition’ ... easily encompass[ed] obligations that take the form of common law rules.”
Cipollone,
— U.S. at -,
The plaintiffs contend that the reference in section 136v(b) to “Such State” means the state described in subsection (a), namely, a state that has “regulate[d] the sale or use of any federally registered pesticide.” From this, they conclude that the prescription provision of subsection (b) covers only state regulation, but not state common law claims. Subsection (a), however, is a grant of authority to the states to regulate the “sale or use” of pesticides,- not a limitation upon the preemptive effect of subsection (b). The word “Such” in subsection (b) does not limit to state regulation the state “requirements for labeling or packaging” which that section preempts;
The legislative history of the 1972 amendments to FIFRA, which added section 136v to. the statute, supports our conclusion. The Senate Committee Report on the provision *1350 stated that section 136v(b) “preempts any State or local government labeling or packaging requirements differing from such requirements under the Act.” S.Rep. No. 92-970, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3993, 4092, 4128. See also S.Rep. No. 92-838, 92d Cong., 2d Sess. 30 (1972), reprinted in 1972 U.S.C.C.A.N. 3993, 4021 (the provision “preempts any State labeling or packaging requirements differing from such requirements under the Act”). The House Committee Report stated: “[i]n dividing the responsibility between the States and the Federal Government for the management of an effective pesticide program, the Committee has adopted language which is intended to completely preempt State authority in regard to labeling and packaging.” H.R.Rep. No. 92-511, 92d Cong., 2nd Sess. 16 (1971), U.S.Code Cong. & Admin.News 1972, p. 3993.
Our conclusion accords with the decisions of the three courts of appeals that, since Cipollone, have decided the question.
In
Papas v. Upjohn Co.,
Section 136v(b) pre-empts those of the Pa-pases’ state law claims which constitute “requirements for labeling or packaging in addition to or different from” the labelling 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 [— U.S.], 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. 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 preempts the claims.
Id. at 518 (citation omitted).
In
Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc.,
[T]he common law duty is no less a “requirement” in the preemption scheme than a state statute imposing the same burden. ... [T]he common law duty to warn is subjected to the same federal preemptive constraints as a state statute.... To the extent that state tort claims in this case require a showing that defendants’ labeling and packaging should have included additional, different, or alternatively stated warnings from those required under FIFRA, they would be expressly preempted.
Id.
In
Shaw,
In order to succeed in the wake of Cipol-lone, then, Shaw would have to show that FIFRA’s preemption language is less sweeping than the language of the 1969 Cigarette Act. Yet we can discern no significant distinction at all — FIFRA says that “[s]uch State shall not impose * * * any requirements for labeling or packaging in addition to or different from those required * * while the cigarette law says “[n]o requirement[s] or prohibitions] * * * imposed under State law” shall be permitted. Both seem equally emphatic: “[n]o requirements or prohibitions” is just another way of saying a “[sjtate shall not impose * * * any requirements.” Not even the most dedicated hair-splitter could distinguish these statements. If common law actions cannot survive under the 1969 cigarette law, then common law actions for labeling and packaging defects cannot survive under FIFRA.
Id. at 371.
C. The plaintiffs rely on
Ferebee v. Chevron Chemical Co.,
In deciding Ferebee, the District of Columbia Circuit did not have the benefit of the Supreme Court’s subsequent analysis and ruling in Cipollone. It is impossible to predict whether, in light of Cipollone and the other courts of appeals’ decisions discussed above, the District of Columbia Circuit would continue to follow Ferebee. In any event, for the reasons set forth in this opinion, we do not find Fereb.ee persuasive.
Affirmed.