Amicus Curiae Brief — Bates v. Dow Agrosciences LLC

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eee INT rie a —

No. LY fie Coan TS

i OFFICE Or tr |

IN THE EOF THE CLERK |

Supreme Court of the Anited States

DENNIS BATES. ET AL..

- Petitioners.

Vv.

Dow AGROSCIENCES LLC.

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE WESTERN PEANUT GROWERS

ASSOCIATION, CORN PRODUCERS ASSOCIATION

OF TEXAS, TEXAS PEANUT PRODUCERS

BOARD, AND EVERGREEN FARMS

IN SUPPORT OF PETITIONERS

DAVID T. GOLDBERG SEAN H. DONAHUE

99 Hudson St.. 8th FI. Counsel of Record

New York, N.Y. 10013 1477 A St.. N.E.

(212) 334-8813 Washington D.C. 20002

(202) 277-7085

Counsel for Amici Curiae

September 2004

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 — WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AU TRO E ii crcescccccccessecscccssccssccsssccceneees

STATEMENT OF INTEREST ...............ccccssssssseseeseeens

INTRODUCTION AND SUMMARY OF

Fe EEE

ARGUMENT

CONGRESS DID NOT INTEND TO PRE-

EMPT COMMON LAW DAMAGE AC-

TIONS IN ENACTING 7 U.S.C. § 136v(b).........

A. When Congress Enacted Section 136v(b),

Common Law Damages Actions Chal-

lenging the Adequacy of Warnings and

Label Statements Made by Pesticide Man-

ufacturers Were Widely Available Not-

withstanding Extensive Pesticide Labeling

ID occtccscesicansinnessitvansenieninannens

At the time of the enactment of the

1972 Act, common law damages ac-

tions against pesticide manufacturers

were widely available and uncon-

CUD vcecceresennnintisiiescidinetunivimniines

Before 1972, state and federal govern-

ments imposed extensive regulations

on the content of pesticide labels...........

At the time of the enactment of the

1972 Act, Federal and state labeling

requirements were not understood to

preempt damages actions.............seeeee

(i)

TABLE OF CONTENTS—Continued

B. The Legislative History of the 1972 Act

Demonstrates that Section 136v(b) Is

Directed Solely at the Continued

Regulatory Authority of State Agencies in

Light of the Expansion of Federal Power...

1. The legislative history of the 1972 Act

is devoid of any suggestion of an

intent to preempt common law

I I ic inicnittintioniaetiteiitainsiintaicss

2. Section 136v is directed solely at the

continuing regulatory authority of state

II ccatiscipsscicrentinetinenntendaitieninnas

a. The committee hearings...................

b. The development of Section 136v

in the House and Senate...................

c. Discussion of Section 136v in the

House and Senate Committee

ee IO. cnincnceeciivncnsnstiiiiiasiibieteliuidiasigaiasdtiantieainen

Page

ill

TABLE OF AUTHORITIES

CASES

Bean v. Diamond Alkali Co., 454 P.2d 69 (Idaho

Boyl v. California Chemical Co., 221 F. Supp.

sare certnrnencaneemimenmnneenees

Branco Eastern Co. v. Leffler, 482 P.2d 364

Ti di ateprnapnntensmtmanencnieictennminanie

Burr v. Sherwin Williams Co., 268 P.2d 1041

Cannon v. University of Chicago, 441 U.S. 667

Chapman Chemical Co. v. Taylor, 222 $.W.2d

Bs SHITE ntetiesnensenetsenenseecesenssesenenesenvecssases

Cippolone v. Liggett Group, Inc., 505 U.S. 504

Corprew v. Geigy Chemical Corp., 157 S.E.2d

tii ianrceainemncnarinennenencensaneen

Daniels v. Atlantic Refining Co., 295 F. Supp.

Tee

Diamond Alkali Co. v. Godwin, 112 S.E.2d 365

SS MEU, GIPEID cocrncnesocennssevecscssesnmsusssssonsness

Dobias v. Western Farmers Assn., 491 P.2d 1346

EE, eee

Dole v. Dow Chem. Co., 316 N.Y.S.2d 348 (N.Y.

ST TIE isisirenerncesnnentescnessceencenssesessonseapenemee

Ducote v. Chevron Chemical Co., 227 So. 2d 601

EE, AEE, GET encencssmvescscsssscessoessssoesvscenesers

E.l Du Pont de Nemours & Co. v. Baridon, 73

I ceca

Eaton Fruit Co. v. California Spray-Chemical

Corp., 445 P.2d 437 (Ariz. 1968).......ccccccceeseees

Ebers v. General Chemical Co., 17 N.W.2d 176

arene enencrninnmrnnanns

TABLE OF AUTHORITIES—Continued

Page

Edwards v. California Chemical Co., 245 So. 2d

I ee Fe Wee eicinciieciihinnisinitnnccneninntnnitans 7

Golden Gate Hop Ranch, Inc. vy. Velsicol

Chemical Corp., 403 P.2d 351 (Wash. 1965)... 7

Gonzalez vy. Virginia-Carolina Chemical Co.,

239 F. Supp. 567 (D. S.C. 1965) ...........:cecceeeeee 7, 8,12

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

[Eee seccciennieiniihiciantieiiiahiedaaadaibaeharaRat tie 5

Great Western Oil Co. v. Kraus, 122 N.E. 12

Seis iets HRN Were iniinioniecesiesiteniichinadsiinsionninmmmnaiaiities 8

Grey v. Hayes-Sammons Chemical Co., 310 F.2d

ee es ee iaciesiicsuiicintihaneniisiicaniainaiastaiaintiias 8

Griffin v. Planters Chem. Corp., 302 F. Supp.

Ba Career: eteieenseinisiorterisainiesnichieicceatincimmeniaiiaielanaitiiias 7,12

Hubbard-Hall Chemical Co. v. Silverman, 340

Po 7,12

Ingraham v. Assoc. Oil Co., 6 P.2d 645 (Wash.

renee a eI mn ST TROT 8

Jones v. George. 61 Tex. 345 (1884) 0.0.0... 6

La Plant v. E.l. Du Pont de Nemours & Co., 346

S.W.2d 231 (Mo. Ct. App. 1961) 00.2... cece 8

Larance v. FMC Corp., 192 So. 2d 628 (La. App.

Be iicheitsiianielanientaininieetitel ah eee ae 7

Lee v. Madigan, 358 U.S. 228 (1959) .0.......ccccccee 2

McClanhan vy. California Spray-Chem Corp., 75

EE SEE ls EE ccnncintontiendinncepeianiestinneaiians 7,12

McCrossin v. Noyes Bros. & Cutler, 173 N.W.

ID: COUT iaissocesniciscnscthieniettlaniesiasiimaieiaiiaiiiniads 7

McQuaide v. Bridgeport Brass Co., 190 F. Supp.

I ae 8

Medtronic v. Lohr. 518 U.S. 470 (1996) ......000.0.... 2

Miles v. Apex Marine Corp., 498 U.S. 19 (1990).. 5

TABLE OF AUTHORITIES—Continued

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618

UU cicsusiessitstiinminigsinninsssiecianeeianiiaiummenitetaiaipemeitenian

Mossrud v. Lée, 157 N.W. 758 (Wisc. 1916)........

Muncy v. Magnolia Chem. Co., 437 $.W.2d 15

CR: GR, RMI: Fee ccscncescncnnseseneninaseninensmesnnens

Norfolk Redevelopment and Housing Auth. v.

Chesepeake & Potomac Tel. Co., 464 U.S. 30

Patterson v. Orangeburg Fertilizer Co., 108 S.E.

ee ie Cee ieasienteremetnnnintemnemessstinnmneiie

Perry Creek Cranberry Corp. v. Hopkins Ag.

Chem. Co., 139 N.W.2d 96 (Wisc. 1966)..........

Reasor-Hill Corp. v. Kennedy, 272 S.W.2d 685

SI, Fee ccnnsenseseuninisnanmiunincinainninemesenennn

Rose v. Buffalo Air Serv., 104 N.W.2d 431 (Neb.

Rumsey v. Freeway Manor Minimax, 423 S.W.2d

Sawan, Inc. v. American Cyanamid Co., 88

tb gf. 2 een

Simpson v. American Oil Co., 8 S.E.2d 813 (N.C.

Smith v. Atco Co., 94 N.W.2d 697 (Wis. 1959).....

Stiltjes v. Ridco Exterminating Co., 347 S.E.2d

Ay TI icenicrsicnccentniomanateniaiaiautiaiiatiasitustities

Streich v. Hilton-Davis, 692 P.2d 440 (Mont.

Swift & Co. v. Bennett, 373 S.W.2d 569 (Tex.

ic ate, UI. sceeninissenisliniianaiiinntion

Swift & Co. v. Phillips, 314 S.W.2d 326 (Tex.

BN a TI ccessssencnnleniatiiiiinbiiaiinaiit

TABLE OF AUTHORITIES—Continued

Page

Udell v. Rohm & Haas Co., 392 P.2d 225 (Wash.

eae scsccnatiincehasiacieaiapsniehgiaianacinaaiieediiamibtiaiis 8

United States v. Texas, 507 U.S. 529 (1993)......... 5

Van Antwerp-Aldridge Drug Co. v. Schwartz, 82

OR 8

Wasatch Chemical Co. v. Leon, 259 P.2d 301

I ia aaa ate 8

Weber v. Fidelity & Casualty Ins. Co., 250 So.

IPs I ciate arn acielaae 7,8

West Disinfecting Co. v. Plummer, 44 App. D.C.

ers at HUI ssiscssiiiitinssiindesdaniiianichiaeiabaaiiinien 7

White v. National Bank of Commerce, 278 P. 915

Ges Se AIS: SUTIN ctncninsnenchsnnieitibininsiniemnidniints 7

_ Wise v. Hayes, 361 P.2d 171 (Wash. 1961)........... 8

STATUTES

Federal Insecticide. Fungicide, and Rodenticide

RE ee Ce ienennanen 2,9

Insecticide Act of 1910, ch. 191, 36 Stat. 331....... 9

Se i TTT cesicnseeechcaiieeetnieniitinnaiemaeabeaneiiealbie 15,17

SEs Ol SIIIEI enicnnnsensinesarinievnnsensenniaitinsianeanetints passim

7 U.S.C. § 135(z) (nepeaiod).............cccccecsscsesesscesees y

RE oR 2,9

REGULATIONS

pe 8 10

i eT cernsenssccirigrennpiemneneniinsaniens 10

er i TTT icenitinsiiniiinaianenanensianaiieens 10

7 C.F.R. §§ 162.102-105 (1949)... eects 10

ge 10

a) & ] Foes 10

ee ae SIE icccccctiinteainiiiciennipegteataneiis 10

ee eS 3

Vil

TABLE OF AUTHORITIES—Continued

Page

Cal. Admin. Code tit. 3 §§ 6235-6243 «0.0.0... 3

La. Admin. Code. tit. 7, pt XXIII § 117.00... 3

333 Mass. Admin. Code § 8.04 00..........cccccceeeeeeeees 3

7 Pa. Admin. Code § 128.92...............scccccssssceeeeeees 3

Wash. Admin. Code, § 16-228-1400.................. 4

LEGISLATIVE HISTORY MATERIALS

Federal Environmental Pesticide Control Act:

Hearings Before the Subcomm. on Ag. Re-

search of the Sen. Comm. on Ag. and Forestry,

92d Cong., Ist Sess. (1971) .............ccccsesesseeeeees passim

Federal Environmental Pesticide Control Act:

Hearings Before the Subcomm. on Ag. Re-

search of the Sen. Comm. on Ag. and Forestry,

92d Cong., 26 Seas. (1972)..........ccrercecsssceesseeees passim

Federal Environmental Pesticide Control Act of

1971: Hearings Before the Subcomm. on the

Environment of the Sen. Comm. on Com-

merce, 92d Sess., 2d Sess. (1972).........0. 11, 13, 16, 19

Federal Pesticide Control Act of 1971: Hearings

Before the House Comm. on Ag., 92d Cong..,

| passim

H.R. 4152, 92d Cong., Ist Sess. (introduced Feb.

ee 22

H.R. Conf. Rep. No. 1540, 92d Cong., 2d Sess.

I cesennenssnnenintenecmnenenmnmannmnenmintnnisie 13, 21, 28

FRY Bn 11

H.R. Rep. No. 511, 92d Cong., Ist Sess. (1971)... passim

S. Rep. No. 838, 92d Cong., 2d Sess. (1972)........ passim

S. Rep. No. 838 (Supplemental Report), 92d

ee 13,21

S. Rep. No. 970, 92d Cong., 2d Sess. (1972)........ passim

Vill

TABLE OF AUTHORITIES—Continued

Page

117 Cong. Rec. H10674-H10680 (Daily Edition,

PITA Sale SPE endoseeciaipsnrsiasbcemmcieniteesinsasnieaiuaptataesiiieine 13

117 Cong. Rec. H10726-H10774 (Daily Edition,

Is Ti EO cccieretnemicticesinntinrseinraensnesenniaans 13, 15, 21, 27

118 Cong. Rec. $15885-S15900 (Daily Edition,

Sits SEA, SUPT nieincnsnstiisienimenipeteniiimaseontiiisiasiteits 13, 19, 21

118 Cong. Rec. $16977-S16981 (Daily Edition,

uate ay Saree cnsesveniecinteeseeenbaneiliasiabnsbeapesiiaitiincammntacitiaiies 13, 21

118 Cong. Rec. H9184 (Daily Edition, Oct. 5,

Saree ancnicheitihcieiniciheeiieineaieaueiiaaiiaipbaaieaa 21

118 Cong. Rec. H9795-H9798 (Daily Edition,

Is is SUPE eestsestinkiteensinkeehineacbe el tea aE cae 13,19

MISCELLANEOUS

Annotation, Liability of Manufacturer or Seller

for Injury Caused by Animal Feed or Medi-

cines, Crop Sprays, Fertilizers, Insecticides,

Rodenticides, and Similar Products, 81 A.L.R.

Ie TET TTITET hciesssethaesinasttngnieiniiiaiiaeaiatiiapineatidiatadaia 9

Robert L. Rabin, A Sociolegal History of the

Tobacco Tort Litigation, 44 Stan. L. Rev. 853

Heer et i eedeeseneitiamininenisnensts eenmneeinallbcnmmeiennieins 6

Donald Stever, 1 Law «! Chemical Reg. and

Hazardous Waste (2004) ...........ccccccccsceeseeereeeeees 4

STATEMENT OF INTEREST*

The Western Peanut Growers Association is a nonprofit

trade association representing approximately 1,000 peanut

growers in legislative and public policy matters. The Texas

Peanut Producers Board is the oldest commodity board in

Texas, representing the interests of peanut producers in

improving peanut quality and improving the profitability of

peanut production. The Corn Producers Association of Texas

is a nonprofit trade group representing approximately 250

corn producers, committed to increasing the profitability of

corn production through education, promotion, research, and

marketing. Evergreen Farms is a vegetable and pecan farm

operated by Howard Ivy.

These amici represent farmers who purchase and use

pesticides and other agricultural chemicals. They have a

strong interest in the question presented by this case, as their

ability to recover for injuries they may suffer as a result of

using pesticides may depend on the preemptive effect of 7

U.S.C. § 136v(b). As we demonstrate below, by the time the

statute was enacted in 1972, farmers and others injured by

pesticides had for decades maintained actions against

pesticide manufacturers under theories of breach of duty to

warn, failure to perform as advertised, breach of warranty,

strict liability, and other common law theories. Nothing in

the statutory text or the voluminous legislative history sug-

gests than Congress intended to deprive them of their long-

established common-law remedies.

* Pursuant to Rule 37.6, amici state that no counsel for any party

authored any part of this brief. No person or entity, other than amici, made

a monetary contribution toward the preparation or submission of this

brief, which is filed with the parties’ written blanket consent.

INTRODUCTION AND SUMMARY OF ARGUMENT

The issue presented by this case is whether Congress

intended to extinguish damages actions under state common

Jaw by prohibiting the states from imposing pesticide labeling

“requirements,” as that term is used in Section 24(b) of the

Federal Environmental Pesticide Control Act of 1972 (“1972

Act”), codified at 7 U.S.C. § 136v(b). In Cippolone v. Liggett

Group, Inc., 505 U.S. 504 (1992), and Medtronic v. Lohr, 518

U.S. 470 (1996), this Court interpreted two different federal

Statutes that prohibit states from imposing certain types of

“requirements,” and reached differing conclusions as to

whether those prohibitions encompass common law damages

actions. Although Cippolone and Medtronic construe the term

“requirements” differently, the cases teach the same lesson:

the meaning of the term “requirements” must be inferred

from its statutory context. “Only mischief” can result from

giving terms in different statutes “one meaning regardless

of the statutory context.” Lee v. Madigan, 358 U.S. 228,

231 (1959).

An examination of the statutory context of Section 136v(b)

reveals that Congress had no intention in enacting the 1972

Act to preempt any common law damage remedies. Section

136v is addressed to a question very different from the

continued availability of tort remedies: the scope of state

agencies’ authority to regulate pesticides in light of the

expansion of federal authority carried out in the 1972 Act.

Under the Federal Insecticide, Fungicide, and Rodenticide

Act of 1947, 61 Stat. 163 (“1947 Act”), the federal govern-

ment had regulated the content of labels of pesticides that

traveled in interstate commerce by requiring that such

pesticides be registered with the Department of Agriculture, a

process that required federal approval of the form and content

of pesticide labels, but pre-1972 federal law did not require

registration for pesticides that moved only in intrastate

commerce, nor did it directly regulate the use of any

pesticides.' These subjects were within the purview of state

agencies, which had established a variety of regulatory

schemes governing pesticide uses and which also required

registration and approval of labels for pesticides formulated

for in-state use.” In the 1972 Act, the federal government

moved into these areas previously regulated by state agencies,

raising the question of what regulatory authority state.

administrative agencies retained.

Section 24 of the 1972 Act, codified at Section 136v,

represents Congress’s principal effort to answer that question.

Subsection (a) of that provision, aptly entitled, “In general,”

establishes the general rule that state agencies “may regulate”

the uses of pesticide to the extent such regulation is stricter

than that imposed by EPA. Subsection (b) is entitled “Uni-

formity” because it addresses the interest in allowing

pesticide manufacturers to market pesticides nationally

bearing a single uniform label. It establishes an exception to

the general rule—“such states,” i.e., those which regulate the

use of pesticides, may not impose labeling “requirements”

different from those mandated by EPA. Subsection (c), in

turn, provides that, notwithstanding the general prohibition on

state-imposed labeling requirements, a state may require

registration of pesticides formulated for use within that state

to allow “additional uses” of the pesticides not approved by

the federal government to “meet special local needs.” Under

subsection (c), states may approve supplemental labels giving

instructions and warnings regarding these additional uses,

' See 7 U.S.C. § 135b (repealed); S. Rep. No. 838, 92d Cong., 2d Sess.

(1972) [“Sen. Ag. Comm. Report”] at 4 (“[T]here is no prohibition at

present against the misuse of a registered pesticide. There is also no

control under the Act for pesticides distributed within a single state.”).

” See Federal ; esticide Control Act of 1971: Hearings Before the House

Comm. on Ag., 92d Cong., Ist Sess. (1971) [“House Comm. Hearing” at

21-22 (table of state pesticide laws).

and, in doing so, states impose regulatory requirements

regarding the form and content of those labels.’

Section 136v(b) cannot be construed to eliminate existing

common law damages remedies because there is no basis for

believing that Congress even considered doing so (let alone

intended to do so). At the time of the enactment of the 1972

Act, common law damages actions against pesticide manu-

facturers sounding in tort were a commonplace and uncon-

troversial feature of the legal landscape, and hundreds of

cases had been decided involving claims that instructions and

warnings provided by pesticide companies were inadequate,

misleading, or false, and allegations that a pesticide failed to

live up to claims made on a pesticide label. Although state

and federal statutes had long imposed substantial pesticide

labeling requirements, these requirements were not under-

stood to conflict in any way with the availability of common

law damages actions against pesticide manufacturers based

on their failure to warn, fraudulent misrepresentations, or

other tortious conduct.

The conclusion that Section 136v(b) is addressed exclu-

sively to the respective authority of state and federal

administrative agencies, and not the availability of common

law damages actions, is overwhelmingly demonstrated by the

legislative history of the 1972 Act. All the testimony, debates,

and discussions over what became Section 136v(b) address

the ongoing regulatory authority of the state pesticide

agencies. In contrast, in 2300 pages of committee hearing

transcripts regarding the 1972 Act, four committee reports, a

conference committee report, and five days of debate on the

* See 40 C.F.R. § 162.153(e). For examples of state labeling require-

ments, see, e.g., Cal. Admin. Code tit. 3, § 6235-6243; La. Admin Code.

tit. 7, pt. XXIII, § 117; 7 Pa. Admin. Code § 128.92; 333 Mass. Admin.

Code § 8.04; Wash. Admin. Code § 16-228-1400. See generally Donald

Stever, | Law of Chemical Reg. and Hazardous Waste §§ 3:46-3:48

(2004).

floor of the House and Senate, there is absolutely no dis-

cussion of extinguishing common law damages remedies.

Congress should not be deemed to have wiped out, without

ever having considered the question, a body of important

remedies that had long been available to persons injured by

pesticides.

ARGUMENT

CONGRESS DID NOT INTEND TO PREEMPT

COMMON LAW DAMAGE ACTIONS IN ENACT-

ING 7 U.S.C. § 136v(b)

A. When Congress Enacted Section 136v(b), Com-

mon Law Damages Actions Challenging the

Adequacy of Warnings and Label Statements

Made By Pesticide Manufacturers Were

Widely Available Notwithstanding Extensive

Pesticide Labeling Requirements

In order to understand the changes made (and not made) in

pesticide regulation through the 1972 Act, it is important to

understand the state of the law as it existed in 1972, as it must

be “presume[d] that Congress is knowledgeable about exist-

ing law pertinent to the legislation it enacts.” Goodyear

Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988). See also

Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); Cannon

v. University of Chicago, 441 U.S. 667, 698-99 (1979). The

1972 Act should be read to alter existing law, including the

availability of common law damages actions, only if there is

substamtial reason to believe that Congress intended that

result. See, e.g., United States v. Texas, 507 U.S. 529, 534

(1993) (discussing the “longstanding .. . principle” that

“statutes which invade the common law .. . are to be read

with a presumption favoring the retention of long-established

and familiar principles”); Norfolk Redevelopment and

Housing Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S.

30, 35-36 (1983) (common-law doctrines “‘ought not to be

deemed repealed, unless the language of the statute be clear

and explicit for this purpose.’ ”) (quoting Fairfax 's Devisee v.

Hunter's Lessee, 7 Cranch 603, 623 (1812)); Mobil Oil Corp.

v. Higginbotham, 436 U.S. 618, 625 (1978) (statute must

“speak directly” to abrogate common law principle). “[T]his

presumption favoring retention of existing law” is particularly

appropriate where, as here, the settled law in question is state

common law. United States v. Texas, 507 U.S. at 543 (citing

Milwaukee v. Illinois, 451 U.S. 304, 316-17 (1981)).

1. At the time of the enactment of the 1972

Act, common law damages actions against

pesticide manufacturers were widely avail-

able and uncontroversial

To construe Section 136v(b), as did the court of appeals, as

preempting any state common law damages action that

touches on the adequacy or inadequacy of statements made

on pesticide labels (not to mention those which might operate

indirectly, to “induce” manufacturers to alter their labels),

would eliminate a large and settled body of law. Since the late

nineteenth century, common law damages actions have been

available to those injured by ineffectual or harmful pes-

ticides.* In 1884, a farmer brought an action against the seller

of “Royall’s Patent or Receipt for Killing Worms,” which had

been represented as effective against cotton worms but which

plaintiff allegedly had failed to control them.° Since then,

pesticide manufacturers were held to answer under familiar

tort theories for failure to warn of the potential harms to crops

* The issue here differs from that in Cippolone, which addressed

whether Congress intended to preempt tort actions against cigarette

manufacturers. When the statutes involved in Cippolone were adopted,

there had been almost no history of common law actions against cigarette

manufacturers. See Robert L. Rabin, A Sociolegal History of the Tobacco

Tort Litigation, 44 Stan. L. Rev. 853 (1992).

° Jones v. George, 61 Tex. 345 (1884).

and farm animals resulting from use of their products,° and

for personal injuries resulting from use of their products.’

In addition to actions for failure to warn, pesticide manu-

facturers were long subject to suit on a variety of other

common law theories when their products failed to per-

form as advertised or otherwise caused injury. Manufacturers

thus were held to a standard of strict liability for manu-

facturing products that failed to perform as advertised.* They

also faced liability for negligence in formulating products that

. See, e.g., E.l. Du Pont de Nemours & Co. v. Baridon, 73 F.2d 26 (8th

Cir. 1934); Reasor-Hill Corp. v. Kennedy, 272 S.W.2d 685 (Ark. 1954);

White v. National Bank of Comm., 278 P. 915 (Cal. D. Ct. App. 1929);

Daniels v. Atlantic Refining Co., 295 F. Supp. 125 (D. Del. 1968);

Larance v. FMC Corp., 192 So. 2d 628 (La. App. Ct. 1966); Ebers v.

General Chem. Co., 17 N.W.2d 176 (Mich. 1945); Streich v. Hilton-

Davis, 692 P.2d 440 (Mont. 1984); Dole v. Dow Chem. Co., 316 N.Y.S.2d

348 (N.Y. Sup. Ct. 1970); Swift & Co. v. Phillips, 314 S.W.2d 326 (Tex.

Civ. App. 1958); McClanhan v. Cal. Spray-Chem Corp., 75 S.E.2d 712

(Va. 1953); Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 403

P.2d 351 (Wash. 1965).

’ See, e. g., Hubbard-Hall Chemical Co. v. Silverman, 340 F.2d 402 (ist

Cir. 1965); West Disinfecting Co. v. Plummer, 44 App. D.C. 345 (D.C.

Cir. 1916); Griffin v. Planters Chem. Corp., 302 F. Supp. 937 (D.S.C.

1969); Gonzalez v. Virginia-Carolina Chemical Co., 239 F. Supp. 567 (D.

S.C. 1965); Boyl v. California Chemical Co., 221 F. Supp. 669 (D. Or.

1963); Edwards v. California Chemical Co., 245 So. 2d 259 (Fla. Ct. App.

1971); Weber v. Fidelity & Casualty Ins. Co., 250 So. 2d 754 (La. 1971);

McCrossin v. Noyes Bros. & Cutler, 173 N.W. 566 (Minn. 1919); Orr v.

Shell Oil Co., 177 S.W.2d 608 (Mo. 1943); Muncy v. Magnolia Chem.

Co., 437 S.W.2d 15 (Tex. Ct. App. 1968); Rumsey v. Freeway Manor

Minimax, 423 S.W.2d 387 (Tex. Ct. App. 1968); Mossrud v. Lee, 157

N.W. 758 (Wisc. 1916).

, See, e.g., Chapman Chemical Co. v. Taylor, 222 $.W.2d 820 (Ark.

1949); Stiltjes v. Ridco Exterminating Co., 347 S.E.2d 568 (Ga. 1986);

Streich v. Hilton-Davis, 692 P.2d 440 (Mont. 1984); Rose v. Buffalo Air

Serv., 104 N.W.2d 431 (Neb. 1960).

caused personal injuries or harm to crops,” and for failing to

conduct testing sufficient to ensure their products’ safety and

efficacy.’ Manufacturers were also understood to sell pes-

ticides subject to implied warranties of fitness and merchant-

ability, and could be liable as well when products failed to

perform as expressly warranted. |!

The availability of common law actions against pesticide

manufacturers is richly documented in a lengthy 1962 anno-

” See, e. g., Grey v. Hayes-Sammons Chemical Co., 310 F.2d 291 (Sth Cir.

1962); Branco Eastern Co. v. Leffler, 482 P.2d 364 (Colo. 1971); Great

Western Oil Co. v. Kraus, 122 N.E. 12 (Ind. Ct. App. 1919); Weber v.

Fidelity & Casualty Ins. Co., 250 So. 2d 754 (La. 1971); La Plant v. E.1. Du

Pont de Nemours & Co., 346 §.W.2d 231 (Mo. Ct. App. 1961); Corprew v.

Geigy Chemical Corp., 157 S.E.2d 98 (N.C. 1967); Simpson v. American

Oil Co., 8 S.E.2d 813 (N.C. 1940); Patterson v. Orangeburg Fertilizer Co.,

108 S.E. 401 (S.C. 1921); Wise v. Hayes, 361 P.2d 171 (Wash. 1961); Perry

Creek Cranberry Corp. v. Hopkins Ag. Chem. Co., 139 N.W.2d 96 (Wise.

1966); Smith v. Atco Co., 94 N.W.2d 697 (Wisc. 1959).

x E.g., Gonzalez v. Virginia-Carolina Chem. Co., 239 F. Supp. 567 (D.

S.C. 1965); Reasor-Hill Corp. v. Kennedy, 272 S.W.2d 685 (Ark. 1954);

Chapman Chem. Co. v. Taylor, 222 S.W.2d 820 (Ark. 1949); Ebers v.

General Chem. Co., 17 N.W.2d 176 (Mich. 1945).

" See, e.g., McQuaide v. Bridgeport Brass Co., 190 F. Supp. 252 (D.

Conn. 1960); Van Antwerp-Aldridge Drug Co. v. Schwartz, 82 So. 2d 209

(Ala. 1955); Eaton Fruit Co. v. California Spray-Chem. Corp., 445 P.2d

437 (Ariz. 1968); Burr v. Sherwin Williams Co., 268 P.2d 1041 (Cal.

1954); Sawan, Inc. v. American Cyanamid Co., 88 S.E.2d 152 (Ga. 1955);

Diamond Alkali Co. v. Godwin, 112 S.E.2d 365 (Ga. Ct. App. 1959);

Bean v. Diamond Alkali Co., 454 P.2d 69 (Idaho 1969); Ducote v.

Chevron Chem. Co., 227 So. 2d 601 (La. Ct. App. 1969); Ebers v. Gen]

Chem. Co., 17 N.W.2d 176 (Mich. 1945); Corprew v. Geigy Chem. Corp.,

157 S.E.2d 98 (N.C. 1967); Simpson v. American Oil Co., 8 S.E.2d 813

(N.C. 1940); Patterson v. Orangeburg Fert. Co., 108 S.E. 401 (S.C.

1921); Swift & Co. v. Bennett, 373 S.W.2d 569 (Tex. Civ. App. 1963);

Wasatch Chem. Co. v. Leon, 259 P.2d 301 (Utah 1953); Udell v. Rohm &

Haas Co., 392 P.2d 225 (Wash. 1964); Ingraham v. Assoc. Oil Co., 6 P.2d

645 (Wash. 1932); Dobias v. Western Farmers Ass'n, 491 P.2d 1346

(Wash. Ct. App. 1971).

tation. It states a then-uncontroversial principle: “A duty of

due, reasonable care binds [pesticide] manufacturers and

sellers of products of this kind. This duty of care includes a

duty to warn of product-connected dangers, a duty on the part

of the manufacturer to subject the product to reasonable tests,

and a duty on the part of the seller to subject the product to

reasonable inspection.” Liability of Manufacturer or Seller

for Injury Caused by Animal Feed or Medicines, Crop

Sprays, Fertilizers, Insecticides, Rodenticides, and Similar

Products, 81 ALR 2d 138, 144 (1962).

2. Before 1972, state and federal governments

imposed extensive regulations on the content

of pesticide labels

At the same time that these common law damages actions

challenging the validity of claims and warnings appearing on

pesticide labels were widely proceeding, state and federal law

imposed extensive pesticide labeling requirements. In 1910,

Congress had enacted the Insecticide Act, ch. 191, 36 Stat. 331,

repealed 61 Stat. 163, 172 (1947), which prohibited the sale of

pesticides in interstate commerce if they bore labels containing

false or misleading information. The 1947 Act, which repealed

the Insecticide Act, imposed far more extensive federal labeling

requirements. That statute declared a pesticide to be “mis-

branded” if its label included “any statement . . . which is false

or misleading” or “if the label does not contain a warning or

caution statement which may be necessary.” 1947 Act § 2(z),

codified at 7 U.S.C. § 135(z) (repealed).

Under the 1947 Act, the Department of Agriculture reg-

istered all pesticides moving in interstate commerce, and such

registrations required federal approval of the language

appearing on the pesticide label.'? Department of Agriculture

regulations required pesticide labels to contain certain fea-

tures, including the name and address of the manufacturer, an

? 1947 Act § 4, codified at 7 U.S.C. § 135b (repealed).

ingredient statement, and certain caution or warning state-

ments.'> Federal regulations dictated the size, typeface, and

position of the required label features.'* Pesticides classified

by the federal government as highly toxic were required to

bear a label featuring the skull and crossbones symbol, the

word “poison” in red lettering against a contrasting back-

ground, and emergency precautions.'’ Federal regulations

established the language of specific warning statements

for particular pesticides, such as benzene hexachloride and

DDT.'® As of November 1970, over 37,000 pesticide pro-

ducts had been registered pursuant to these regulations.’

At the same time, states had established extensive pesticide

regulations; by 1972. all but two states had adopted pesticide

registration laws.'* State pesticide laws required registration

of pesticides for use within the state. Although both the state

and federal governments predicated registration on approval

of pesticide labels pursuant to a set of regulatory labeling

requirements, these requirements generally did not result in

conflicting directives to pesticide companies because state

agencies generally accepted the validity of federally regis-

tered labels.'” This practice comported with federal policy

"7 C.F.R. §§ 162.6, 162.7, 162.103 (1949).

‘7 CFR. §$§ 162.102-105 (1949).

* 7 C.F.R. §§ 162.6, 162.9 (1949).

7 CFR. §§ 162.112, 162.114 (1949).

"’ See House Comm. Hearing at 96.

* See id at 8, 21-22 (table of state pesticide laws).

” See Federal Environmental Pesticide Control Act: Hearings Before

the Subcomm. on Ag. Research of the Sen. Comm. on Ag. and Forestry,

92d Cong., Ist Sess. (1971) [“1971 Senate Ag. Comm. Hearing”] at 489

(John H. Kirkpatrick, Director, Ag. Chem. Div., Alabama Dept. of Ag.

and Industries) (“The State of Alabama registers pesticides without further

investigation if a product has a USDA registration number.”); Federal

Environmental Pesticide Control Act: Hearings Before the Subcomm. on

Ag. Research of the Sen. Comm. on Ag. and Forestry, 92d Cong., 2d Sess.

under the 1947 Act, in which Congress had considered it

“highly desirable that the laws governing [pesticides] be as

nearly uniform as possible . . . so that manufacturers may

have Nation-wide distribution with a minimum of conflict be-

tween the labeling requirements of the various [state] laws.””°

The state agencies imposed their own labeling require-

ments on products not covered by the 1947 Act, including

pesticides formulated solely for intrastate use, which by 1972

were estimated to number as many as 25,000 products.”!

Some state agencies also registered federally-registered

pesticides for uses not approved by the federal government

and imposed labeling requirements on products registered

under the 1947 Act.” In addition, many states’ statutes

authorized administrative agencies to regulate directly the

uses of pesticides, not only their labeling.”

3. At the time of the enactment of the 1972 Act,

federal and state labeling requirements were

not understood to preempt common law

damages actions

At the time Congress enacted the 1972 Act, the existence

of extensive federal and state pesticide labeling requirements

was not understood to affect the availability of common law

(1972) [“1972 Senate Ag. Comm. Hearing™] at 155 (Charles H. Frommer,

Director, Bureau of Pesticide Control, New York State Dept. of Env.

Conservation); but see House Comm. Hearing at 829 (Errett Deck, Wash.

Dept. of Ag.) (“Several states violate [the 1947 Act] by issuing state

registrations for supplemental labeling for pesticides shipped into their

state under a federally registered label.”’).

?° HR. Rep. No. 313, at 3 (1947), reprinted in 1947 U.S.C.C.AN. 1202.

*" See 1971 Sen. Ag. Comm. Hearing at 487, 489; Federal Environ-

mental Pesticide Control Act of 1971: Hearings Before the Subcomm. on

the Env't of the Sen. Comm. on Commerce, 92d Sess., 2d Sess. (1972)

[“Sen. Commerce Comm. Hearing” | at 146.

” See 1972 Sen. Ag. Comm. Hearing at 341.

** See House Comm. Hearing at 21-22.

damages actions. Thus, in a wrongful death action against an

insecticide manufacturer, the First Circuit concluded that

federal approval of the product's label “merely satisfied”

federal law but did not certify that the defendant had met the

standard of due care imposed by state law.’ Rather than

supplanting state tort law. federal labeling requirements were

widely understood to set minimum standards of care without

otherwise altering state common law.”*

Thus, by 1972, when section 136v(b) was enacted, it was

widely recognized that pesticide manufacturers were liable

both for personal injuries and crop damage resulting from

pesticides, including for the failure to provide adequate

warnings and instructions for the use of their products. Courts

uniformly recognized that such common law actions did not

conflict with extensive federal labeling requirements. As

** Hubbard-Hall Chem. Co. v. Silverman, 340 F.2d 402, 405 (Ist Cir.

1965).

* See. e.g. Griffin v. Planters Chem. Corp., 302 F. Supp. 937, 944

(D.S.C. 1969) (“Aside from the requirements set forth for the label by the

Secretary of Agriculture, [defendants] had a duty to use a label, or furnish

a warning commensurate with the danger.”); Gonzalez v. Virginia-

Carolina Chem. Co., 239 F. Supp. 567, 572 (D.S.C. 1965) (“Even had the

defendant not failed to warn the public as it was required to do by the

Federal and State law, it is my opinion that the manufacturer of a

hazardous material is under a common law duty to . . . give adequate

warning.” ): Mungy v. Magnolia Chem. Co., 437 S.W.2d 15, 19 (Tex. Ct.

App. 1968) (“The statutes and regulations set minimum standards for

those marketing economic poisons.”); Rumsey v. Freeway Manor

Minimax, 423 S.W.2d 387. 394 (Tex. Ct. App. 1968) (holding that 1972

Act does not “purport|] to change the common law duty to warn... . We

are of the view that [the 1972 Act and its regulations] merely set

minimum standards.”): Ebers v. General Chemical Co., 17 N.W.2d 176,

18] (Mich. 1945) (“Defendant cannot escape liability merely by showing

that it followed the recommendations of the United States Department of

Agriculture.”); McClanahan v. California Spray-Chem. Co., 75 S.E.2d

712 (Va. 1953) (violation of 1972 Act constitutes negligence per se in

State tort action): Perry Creek Cranberry Corp. v. Hopkins Ag. Chem. Co.,

139 N.W.2d 96. 102 (Wisc. 1966) (same).

discussed in the next section, Congress had no intent to alter

this settled body of law when it enacted Section 136v(b).

B. The Legislative History of the 1972 Act Demon-

strates that Section 136v(b) Is Directed Solely

at the Continued Regulatory Authority of State

Agencies in Light of the Expansion of Federal

Power

The legislative history of the 1972 Act demonstrates that

Congress gave no consideration to preempting any aspect of

state tort law and had no intent to eliminate amy common law

damages remedies. The 1972 Act is not one whose legislative

history is scanty, confused, or ambiguous. On the contrary,

the legislative history of 1972 Act is voluminous and, on this

point, very clear. In 1971 and 1972, three House and Senate

committees held 25 days of hearings on proposed pesticide

legislation, the transcripts of which fill over 2300 pages.”°

Each committee issued a report, filling over 275 pages.”’ A

conference committee issued a 34-page report.” Floor

debates occurred over five days, the transcripts of which fill

over 150 pages in the Congressional Record.*” What became

*® See House Comm. Hearing; 1971 Senate Ag. Comm. Hearing; 1972

Senate Ag. Comm. Hearing; Sen. Commerce Comm. Hearing.

”” See H.R. Rep. No. 511, 92d Cong., Ist Sess. (1971) [“House Comm.

Report”}; Sen. Ag. Comm. Report; S. Rep. No. 838 (Supplemental

Report), 92d Cong., 2d Sess. (1972) [“Supplemental Sen. Ag. Comm.

Report”]; S. Rep. No. 970, 92d Cong., 2d Sess. (1972) [“Sen. Commerce

Comm. Report”]. -

* HER. Conf. Rep. No. 1540, 92d Cong., 2d Sess. (1972) [“Conf.

Comm. Report” ].

* 117 Cong. Rec. H10674-H10680 (Daily Edition, Nov. 8, 1971) (House

debate); 117 Cong. Rec. H10726-10774 (Daily Edition, Nov. 9, 1971)

(House debate and passage); 118 Cong. Rec. $15885-S15900 (Daily Edi-

tion, Sept. 26, 1972) (Sen. debate and passage); 118 Cong. Rec. $16977-

$16981 (Daily Edition, Oct. 5, 1972) (Sen. debate and passage of confer-

ence report); 118 Cong. Rec. H9795-H9798 (Daily Edition, Oct. 12, 1972).

Section 136v was debated at considerable length. But, in

those thousands of pages of hearings, reports, and transcripts

of floor debates, there is precisely no mention of any concern

about the availability of state tort law—and no discussion of

the preemption of any aspect of state tort law.

1. The legislative history of the 1972 Act is

devoid of any suggestion of an intent to

preempt common law damages actions

EPA General Counsel John Quarles, appearing as the first

witness in the first committee hearing on the Administration's

proposed pesticide bill, stated unequivocally: “The bill does

not affect tort liability.°° No witness appearing thereafter,

nor any Member of Congress, suggested otherwise. While the

legislative history includes several other scattered references

to the availability of common law damages actions, none

suggest any intent to preempt such actions.”

** House Comm. Hearing at 42. The statement came in response to a

question from Rep. Foley, who asked Mr. Quarles whether application of

pesticides in compliance with EPA regulations would “grant complete

immunity™ to the applicator and establish “prima facie evidence of com-

plete compliance with the law.” Rep. W.R. Poage, Chairman of the House

Agriculture Committee, interrupted to ask whether Rep. Foley was

suggesting that the bill would immunize users of pesticides from common

law damages actions: “Surely, you do not mean to say that if I have a

mesquite pasture here, and Mr. Stubblefield had a field of cotton adjoining

it, and | sprayed 2.4,5-T on my mesquite pasture, and it goes over on his

property, he would not have a cause of action against me?” After Mr.

Quarles gave the answer quoted above, Rep. Foley clarified that his

question was directed at immunity from statutory penalties, not common

law damages.

' For instance, the Senate Commerce Committee Report includes a

letter from Professor John J. Flynn, who stated that federal pesticide law

should “insure to a limited degree that the product will perform its

function without substantial adverse effects on the environment” even

though “the common law of negligence and warranty already imposes

such a burden upon the manufacture of a product.” Sen. Commerce

Comm. Report at 18. A witness for Hercules, Inc., a pesticide manu-

Over the course of the hearings, thirty-three witnesses

testified on behalf of the pesticide industry, and not one

suggested that the availability of common law damages

actions undermined their ability to produce uniform labels,

and none of these industry witnesses asked for federal

protection from common law damages actions.’” The industry

facturer, acknowledged that his company had been sued for products

liability, and a witness for a pest control trade association likewise

acknowledged liability suits, adding that they had “never been a problem

that was serious enough for us to consider it a difficulty.” House Comm.

Hearing at 415; 1971 Sen. Ag. Comm. Hearing at 467. An entomologist

mentioned that he had appeared as an expert witness in two cases brought

by farmers against pesticide manufacturers. 1971 Sen. Ag. Comm.

Hearing at 612. A witness for migrant farm workers, advocating that EPA

require that pesticide labels include warnings on how long laborers should

avoid fields after pesticide application, suggested that such a labeling

requirement might “facilitate the conduct of law suits” by providing

“some evidence of what the standard of care is.” 1972 Sen. Ag. Comm.

Hearing at 314.

Debate over the 1972 Act’s indemnification provision, enacted as 7

U.S.C. § 136m, suggests that Congress anticipated that state damages

actions would remain available to provide redress for harms caused by

pesticides. Section 136m requires that, under certain circumstances when

EPA cancels a pesticide registration and thereby removes it from the

market, the government must make an indemnity payment to those in

possession of the now unusable and worthless pesticide. In the Senate

Commerce Committee Hearing, Senator Curtis asked whether the

provision was intended to indemnify pesticide manufacturers “in case of

injury to an individual’s health or life,” but David D. Dominick, EPA

issistant Administrator, explained that “[t]he indemnities do not go to

liability for tort or other public problems of that sort.” 1972 Sen. Ag.

Comm. Hearing 93. On the House Floor, a similar question was raised as

to whether the indemnity provision was intended to provide compensation

for persons injured by pesticides; Representative Teague explained that it

“has nothing to do with losses they might have suffered because of any

damage done by pesticides.” 117 Cong. Rec. H19758 (Daily Edition,

Nov. 9, 1971).

”? See House Comm. Hearing at 279-287 (Robert L. Ackerly, Chemical

Specialties Manuf’s Assn., Inc.); id. at 288-316 (R.E. Naegele and Donald

witnesses expressed various concerns about federal regulation

of pesticides and the proposed new pesticide law, including

reservations about the increased regulatory power of EPA and

fear that EPA might cancel pesticides’ registrations without

taking sufficient account of the chemicals’ benefits or the

scientific evidence.** Industry witnesses also expressed con-

cerns about the costs imposed on pesticide manufactures by

federal regulation.** But the concerns raised by the industry

D. McCollister, Dow Chemical Co.); id at 316-322 (William Brehm and

C.P. Stephenson, United Pesticides Formulation and Dist’rs Assn.); id. at

322-328 (Wayne F. Gustafson, Gustafson Manufacturing, Inc.); id. at 329-

333 (Richard H. Wellman, Union Carbide Corp.); id at 333-369 (Parke C.

Brinkley and John D. Conner, Nat’] Ag. Chems. Assn.; John J. Hood, Dr.

C. Boyd Shaffer, and Dr. Frank L. Lyman, Ciba-Geigy Corp.); id. at 369-

370 (Lewis E. Goyette, Southeastern Ag. Chems. Assn.); id. at 370-375

(H.L. Straube, Iver C. MacDougall, and A.B. Linquist, Stauffer Chem.

Co.); id at 377-383 (K.R. Fitzsimmons and Dr. M.J. Sloan, Shell Chem.

Co.): id at 383-394 (J.G. Copeland, Dr. John P. Frawley, John G.

Kuniholm, Charles L. Dunn, and Kenneth T. Givens, Hercules, Inc.); id.

at 394-398 (Richard A. McDonald, Paper Products, Inc.); id. at 398-417

(Dr. Donald A. Spencer, Ciba-Geigy Corp.); 1971 Sen. Ag. Comm.

Hearing at 411-415 (Carlos Kampeier, Nat'l] Ag. Chems. Assn.); id. at

415-421 (Parke C. Brinkley, Nat'l] Ag. Chems. Assn.); id at 421-460

(John D. Conner, Nat’! Ag. Chems. Assn.); id at 461-468 (William L.

Brehm, United Pesticide Formulators & Dist’rs Assn.); id at 468-469

(Roland L. Rhodes, United Pesticide Formulators & Dist’rs Assn.); id. at

469-473 (C.P. Stephenson, United Pesticide Formulators & Dist’rs Assn.);

id at 508-513 (Arthur B. Chivvis, Chem. Specialties Manuf'rs Assn.); id.

at 536-548 (J.G. Copeland, Jr., Hercules, Inc.); 1972 Sen. Ag. Comm.

Hearing at 239-259 (Edward K. Hertel, Nat'l Ag. Chems. Assn.); id. at

259-261 (Parke C. Brinkley; Nat’! Ag. Chems. Assn.); id. at 262-268

(Carlos Kampmeier, Nat’! Ag. Chems. Assn.); Sen. Commerce Comm.

Hearing at 133-156 (David Phillipson and John D. Cunner, Nat’l Ag.

Chems. Assn; John J. Hood, Ciba-Geigy Corp.; Dr. C. Boyd Shaffer,

American Cyanamid Co.; Dr. John S. Tobin, Niagara Chem. Div.; and Dr.

Ronald Spencer, Nat’! Ag. Chems. Assn.).

~** See, e.g, House Comm. Hearing at 280-281, 288-302, 331, 407, 439, 814.

included no objection to the continued availability of com-

mon law damages actions.

Thirty witnesses testified on behalf of federal regulatory

authorities, but not one suggested that the availability of state

common law damages actions, including actions challenging

the adequacy of federally approved labels, created any

conflict with federal regulations or posed any obstacle to the

effective administration of federal labeling regulations,”

* See, e.g., id. at 302, 332, 349; 1971 Sen. Ag. Comm Hearing at 413;

1972 Sen. Ag. Conim. Hearing at 257. To address this concern, the

pesticide industry successfully sought indemnification from the federal

government to pay pesticide manufacturers, dealers, and consumers the

market rate of any pesticides they held at the time of suspension or

cancellation. See 7 U.S.C. § 136m.

*® See House Comm. Hearing at 33-52 (John Quarles, Ray Johnson, and

Lowell E. Miller, EPA); id at 53-88 (J. Phil Campbell, Dr. Francis J.

Mulhern, Dr. H.C. Cox, Dr. Velmar W. Davis, Arthur W. Greely, Lotus

Therkelsen Prokop, Dr. Fred H. Tschirely, Turner Oyloe, and Dr. Ned

Bayley, U.S. Dept. of Ag.); id. at 89-111 (Dr. Albert C. Kolbye, Lessell L.

Ramsey, and Reo Duggan, FDA); id. at 111-120 (Harrison Loesch and

Paul E. Thompson, U.S. Dept. of the Interior); id. at 120-135 (Edwin M.

Cronk and Joseph E. O’Mahony, U.S. Dept. of State); id. at 137-148 (Dr.

E.F. Knipling, U.S. Dept. of Ag.); id. at 152-164 (David E. Ketcham, U.S.

Dept. of Ag.); id. at 169-180 (W.B. Ennis, Jr., U.S. Dept. of Ag.); id at

180-188 (W.D. McClellan, U.S. Dept. of Ag.); id at 707-728 (Russell

Train, President’s Council on Environmental Quality); id at 728-751

(William D. Ruckelshaus, EPA); 1971 Sen. Ag. Comm. Hearing at 160-

191 (Russell E. Train, President’s Council on Environmental Quality); id

at 191-203 (Dr. Ned D. Bayley, U.S. Dept. of Ag.); id at 203-206 (Lotus

Prokop, U.S. Dept. of Ag.); id. at 206 (Dr. Francis Mulhern, U.S. Dept. of

Ag.); id. (Dr. T.C. Byerly, U.S. Dept. of Ag.); id at 207-211 (Fred H.

Tscherley, U.S. Dept. of Ag.); id at 290-302 (William D. Ruckelshaus,

EPA); id. at 302-307 (Dr. Raymond Johnson, EPA); id. at 307-325 (John

R. Quarles, EPA); 1972 Sen. Ag. Comm. Hearing at 80-98 (David D.

Dominick, EPA); id. at 98-111 (Dr. William M. Upholt, EPA); id at 111-

114 (T.C. Byerly, U.S. Dept. of Ag.); id at 114-116 (Harold Carter, U.S.

Dept. of Ag.); Sen. Commerce Comm. Hearing at 156-170 (David D.

Dominick, Dr. William M. Upholt, and Charles Fabrikant, EPA).

Thirty-eight witnesses also testified on behalf of pesticide

users, including representatives of farmers, exterminators,

and homemakers.*® These witnesses generally were con-

Control Assn.); id at 424-427 (Robert Russell, Orkin Exterminating Co.);

id. at 427-432 (James W. Streckel, National Pest Control Assn.); id at 433-

441 (Lon Mann, Bruce Lynn, and Dr. James Brown, National Cotton

Council); id at 457-478 (Clifford G. Mclntire, Boswell Stevens, and

Richard McGuire, American Farm Bureau); id at 483-488 (Don F.

Magdanz and Oscar Breedthauer, National Livestock Feeders Assn.); id. at

488-491 (Robert J. Sullivan, Christmas Tree Growers Assn.); id. at 491-496

(Robert E. Lee III, American Pulpwood Assn.); id at 496-520 (William H.

Lawrence and John F. Hall, National Forest Products Assn.); id at 521-526

(L.C. “Clell” Carpenter and Stuart Spradling, Mid-Continent Farmers

Assn.); id. at 526-530 (Henry M. Tobey and Charles Hromada, Cook Indus.,

Inc.); id at 530-534 (Betty Chapman, “Housewife”); id at 540-543

(Richard T. O'Connell, National Council of Farmer Cooperatives); id at

543-555 (Reuben Johnson, National Farmers Union); id at 558-562 (John

Matthews and C.W. McMillan, American National Cattlemen’s Assn.); id.

at 566-575 (John W. Scott and Robert M. Frederick, National Grange); id

at 590-594 (Bailey Sanistevan and Virgil Mowry, California Fieldmen’s

Assn.); id. at 594-609 (Harry L. Graham, National Farmers Org.); 1971 Sen.

Ag. Comm. Hearing at 211-223 (Lon Mann, National Cotton Council of

America); id at 223-253 (Dr. James M. Brown, National Cotton Council of

America); id at 253-262 (L.C. “Clell” Carpenter and Stuart Spradling,

Missouri Farmers Assn.); id at 262-273 (John W. Scott and Robert M.

Frederick, National Grange); id at 273-277 (Harry L. Graham, Nat’l

Farmers Org.); id at 346-351 (Clifford G. McIntyre, American Farm

Bureau); id at 351-358 (J.D. Hays, American Farm Bureau Fed’n); id at

389-395 (Robert E. Lee Ill, American Pulpwood Assn.); id at 395-403 (J.

Edwin Moore, American Pulpwood Assn.); id at 499-508 (Dr. Ralph E.

Heal, National Pest Control Assn.); id at 603-608 (Robert M. Russell and

Dr. Michael Shinkle, Orkin Exterm’g Co.); id at 699-703 (Henry M.

Tobey, Cook Indus.); 1972 Sen. Ag. Comm. Hearing at 233-239 (Reuben L.

Johnson, Nat’] Farmers Union); id at 285-289 (Dr. Ralph E. Heal, Nat’!

Pest Control Ass’n); id at 289-293 (L.C. Carpenter and Stuart Spradling,

Missouri Farmers Assn.); id at 299-300 (Robert M. Russell, Orkin

Exterm’g Co.); id at 305-314 (Kevin Carey, Migrant Legal Action Pro-

gram); id. at 317-348 (A.V. Krebs, Agribusiness Accountability Project); id.

at 348-354 (Jeffrey Liddle, Orange County Legal Svcs. Project); id at 354-

cerned that Congress might overly restrict the availability of

pesticides, but none of them expressed any concern that the

proposed law might eliminate their existing right to obtain

compensation in the event they suffered personal or economic

injury resulting from pesticide manufacturers; false claims,

ineffective products, or inadequate warnings.

In the committee reports, floor debates, and conference

committee report on the 1972 Act, Congress carefully and

repeatedly described the changes it intended to make through

the Act.’ No mention was made that the Act would eliminate

any of the common law remedies long and widely available to

persons injured by pesticides. The absence of any discus-

sion of eliminating common law damages actions contrasts

sharply with the voluminous testimony Congress heard

regarding the harms to human health posed by pesticides.**

362 (Anita Johnson, Public Interest Res. Gp.); Sen. Commerce Comm.

Hearing at 78-90 (A.V. Krebs, Valerie Kantor, and Jerry Berman, Migrant

Legal Action).

*” See House Comm. Report at 1-2, 12-13; Sen. Ag. Comm. Report at

1-2, 4-6; Sen. Commerce Comm. Report at 8; 118 Cong. Rec. $15889

(Daily Edition, Sept. 26, 1972); id at $15893-15894 (Sen. Allen); 118

Cong. Rec. H9795 (Daily Edition, Oct. 12, 1972).

* See, e.g., Sen. Commerce Comm. Report at 27 (“[A]s many as 800

workers are killed each year and over 800,000 injured as a result of the

unwise and improper use of pesticides”); House Comm. Report at 71

(additional views of Rep. John Dow) (citing reports that 50,000 people in

U.S. are poisoned by pesticides annually); House Comm. Hearing at 11 1-

120 (Harrison Loesch, Assistant Secretary of the Interior); /d at 138 (Dr.

E.F. Knipling, Science Adviser to U.S.D.A.); /d. at 708 (Russell Train,

Chairman, President’s Council on Environmental Quality); 1971 Sen. Ag.

Comm. Hearing at 539 (J.G. Copeland, Hercules, Inc.); id. at 791 (Charles

M. Creuziger, Veg. Growers Assn. of America); 1972 Sen. Ag. Comm.

Hearing at 98 (Dr. William M. Upholt, Deputy Assistant Administrator

for Pesticide Programs, EPA); id. at 310 (Max B. Rothman, Farm Worker

Div., Camden Regional Legal Services); id at 318 (A.V. Krebs, Agri-

business Accountability Project).

What a plurality of this Court said in Medtronic with

regard to the Medical Devices Amendments of 1976 applies

equally to the 1972 Act: “There is, to the best of our

knowledge, nothing in the hearings, the committee reports, or

the debates suggesting that any proponent of the legislation

intended a sweeping pre-emption of traditional common law

remedies . . . If-Congress intended such a result, its failure

even to hint at it is spectacularly odd.” 518 U.S. at 491. Had

Congress intended to deprive persons injured by mislabeled

pesticides of the right to compensation for their injuries, one

would expect Congress to have mentioned this intent

somewhere in the many thousands of pages of legislative

history. It did not.

On the contrary, the 1972 Act was enacted in large part to

provide increased protection against these harms.°*’ Preemp-

tion of state damages actions would thus “have the perverse

effect of granting complete immunity . . . to an industry that,

in the judgment of Congress, needed more stringent

regulation.” Medtronic, 518 U.S. at 487 (plurality opinion).

2. The legislative history confirms that Section

136v was directed solely at the continuing

regulatory authority of state administrative

agencies

The legislative history of the 1972 Act makes clear that

Section 136v was directed at a concern entirely unrelated to

the availability of state tort damages. The provision seeks to

delineate the authority of state agencies to regulate pesticides.

While the availability of common law damages actions was

never discussed or debated over the course of the history of

the 1972 Act, the issue of the continuing regulatory authority

of state administrative agencies was a subject of voluminous

hearing testimony, was discussed in every committee report,

* Sen. Ag. Comm. Report at 3 (stating the 1972 Act provides increased

“protection of man and his environment’).

and was debated at length on the floor of both the House and

Senate.*”

The changes in pesticide regulation proposed for (and, to a

substantial, but lesser extent, effected by) the 1972 legislation

necessitated extensive consideration of the state admin-

istrators’ regulatory because the Act extended federal

authority into two subject matter areas that previously had

been regulated exclusively by the states: direct regulation of

pesticide use and registration of pesticides formulated for

intrastate use.*'

” See, e.g., House Comm. Hearing at 478-483 (Charles P. Ellington,

Stanwood Cath, Dr. Vincent Stewart, and Jonn Hillis, National Assn. of

State Depts. of Ag.); 1971 Sen. Ag. Comm. Hearing at 325-346 (Charles

P. Ellington, National Assn. of State Depts. of Ag.); id. at 486-491 (W.A.

Ruffin, Ala. Dept. of Ag. and Indus.); id. at 491-496 (John H. Kirkpatrick,

Ala. Dept. of Ag. and Indus.); id at 496-499 (J.R. Conley, Ga. Dept. of

Ag.); 1972 Sen. Ag. Comm. Hearing at 116-123 (Dr. Donald R. Isleib,

Mich. Dept. of Ag.); id at 151-156 (Charles H. Frommer, New York

Dept. of Environmental Conservation); id. at 268-285 (Errett Deck, Assn.

of American Pesticide Control Officials); House Comm. Report at 1-2,

16; Sen. Ag. Comm. Report at 16-17, 30; Sen. Commerce Comm. Report

at 7, 44; Supplemental Sen. Ag. Comm. Report at 51-57; Conf. Comm.

Report at 33; 117 Cong. Rec. H10740-H10744, H10751 (Daily Edition,

Nov. 9, 1971); 118 Cong. Rec. $15888-S15889, S15893-S15894 (Daily

Edition, Sept. 26, 1972); 118 Cong. Rec. H9184 (Daily Edition, Oct. 5,

1972); 118 Cong. Rec. 16978 (Daily Edition, Oct. 5, 1972).

*" See Sen. Ag. Comm. Report at | ( “The new bill would (A) regulate

the use of pesticides to protect man and his environment; and (B) extend

Federal pesticide regulation to actions entirely within a single State.”); see

also Statement by the President Upon Signing the Bill Into Law (Oct. 21,

1972) (declaring that the 1947 Act did “not address the problem of

misusing properly registered pesticides and it did not control pesticides

which moved solely in intrastate commerce. The new law remedies these

defects.”); 118 Cong. Rec. $15893 (Daily Edition Sept. 26, 1972) (Sen.

Allen) (“{T]his bill does two things. First, it provides for regulating the

use of pesticides, as distinguished from their labeling and interstate distri-

bution. Second, it extends pesticide regulation to intrastate commerce.”).

—

a. The committee hearings. The original pesticide bill

sponsored by the Nixon Administration and introduced in the

House by Representative W.R. Poage, Chairman of the House

Agriculture Committee, did not directly address the authority

of state agencies to continue their programs of pesticide

registration and regulation.” Testifying on behalf of the

Administration, EPA General Counsel John Quarles empha-

sized that the bill was intended to maintain state agencies’

authority to regulate pesticide use more stringently than did

the federal government: “States thus are not precluded from

imposing stricter standards or added requirements.”

Notwithstanding the Administration’s indicated intent, wit-

nesses for the states were greatly troubled by the absence of a

provision expressly affirming that their regulatory authority

was undiminished. The representative of the National Asso-

ciation of State Departments of Agriculture testified that: “It

is our feeling that it will be better for Congress to clearly

indicate its intentions in this bill rather than leaving this area

a glaring omission and have a battery of fellow lawyers and

courts trying to answer these questions later on.”™* Witnesses

for the state agencies feared that the bill could be construed to

completely oust them of their existing authority.** The state

* See H.R. 4152, 92d Cong., Ist Sess. (introduced Feb. 10, 1971),

reprinted in House Comm. Hearing at 859-904.

* House Comm. Hearing at 8.

“* 1971 Sen. Ag. Comm. Hearing at 338.

* See, e.g., House Comm. Hearing at 851 (H.L. Bruer, Tenn. Dept. of

Ag.) (“We find several objectionable features in this Bill, one of them

being that the Bill, as now drawn, pre-empts all authority for the

registration and regulation of sale and use of pesticides.”); 1971 Sen. Ag.

Comm. Hearing at 336 (Dr. Charles P. Ellington, National Assn. of State

Depts. of Ag.) (“The bill before you would completely preempt State

registration and if enacted and enforced as written there would no longer

be any need for State registration laws.”); id. at 339 (“We are concerned

however, Mr. Chairman, over the bill as it is written now completely

preempting State programs that are in effect today.”); 1971 Sen. Ag.

agencies expressed concern about the loss of jobs and fundin

that might result if their functions were taken over by EPA.

The states were also concerned about the potential preemp-

tion of their authority to regulate the uses of pesticides, to

government, and to register “intrastate” pesticides.*” The state

Comm. Hearing at 745 (Dave L. Pearce, Commissioner, Louisiana Dept.

of Ag.) (“Perhaps the worst feature of the proposed Act is that it takes

pesticide regulation from state control.”).

* See House Comm. Hearing at 479-480 (Charles P. Ellington, Direc-

tor, Maryland Board of Ag., on behalf of Nat’! Ass’n of State Depts. of

Ag.) (“[T]here are 250 people experienced in pesticide registration and

inspection that are on the job today in the States. The bill before you

would completely preempt States in this field if enacted and enforced as

written.”); id at 513-514 (Dr. Vincent E. Stewart, Florida Dept. of Ag.)

(“We have 25 laboratory personnel who are involved in chemical exam-

ination of pesticides and pesticide residues. We have 13 .. . full-time

pesticide inspectors. ... [I}f this bill . . . passes, this will eliminate the

registration of pesticides in our State.”); id at 517 (Dr. Ellington)

(“{T}here would no longer be any need for us to be in the registration

business, we would simply get out of it. . . . | can almost predict with

certainty that in a matter of a few years, there will be no State registration

programs at all unless there is this cooperative program or joint program

that | mentioned. And the bill is not specific in this regard.”); 1971 Sen.

Ag. Comm. Hearing at 336 (Ellington).

* House Comm. Hearing at 829 (Errett Deck, Wash. Dept. of Ag.)

(“There is no provision for state registered uses which deviate in any way

from the labeling of a pesticide registered for interstate shipment.”); id. at

851 (H.L. Bruer, Tenn. Dept. of Ag.) (“The Bill would make it impossible

for a State to register a pesticide material for a purely local need and

use.”); id at 857 (James A. Graham, NC Dept. of Ag.) (“The proposed

Law does not provide for state registered uses which deviate from the

labeling of a federally registered pesticide. . . . | agree with the idea that

uniform labeling of pesticides across the country should be promoted as is

encouraged by the Law when feasible. However, the single label concept

cannot provide for the proper use of pesticides in all areas of the country.

Each state must be allowed to further restrict uses of certain pesticides due

to unique situations or environmental problems that may arise.”); 1971

Sen. Ag. Comm. Hearing at 497 (J.R. Conley, Ga. Dept. of Ag.) (“We do

not wish to imply that we are opposed to regulations at the Federal level

agencies proposed that the Administration’s bill be amended

to clarify that the states, maintained their existing regulatory

authority in these areas.”*

Witnesses for the pesticide industry were also concerned

about the absence of a provision delineating state regulatory

authority. These witnesses were concerned that, if the states

were allowed to maintain their existing authority to register

pesticides and thereby regulate the content of pesticide labels,

different state agencies might impose conflicting label re-

quirements, making it impossible for manufacturers to pro-

duce a pesticide with a single label for national marketing. As

the general counsel for the Chemical Specialties Manu-

facturers Association testified:

[The proposed bill] invites a multiplicity of require-

ments. Some States might want the word “flammable,”

some “inflammable.” . . . Some States might want red

lettering; others orange, another yellow, and so forth.

We ask this committee, therefore, to recognize, as the

Congress has in a number of similar statutes, the

as is borne out by our current cooperative efforts, but we do with to

emphasize that we, like all the other States, have regional and local

problems which sometimes require immediate, severe, and unconven-

tional means of attack.”); id at 498 (“Provision is made that no product

which is not federally registered could be sold within a State, and with

Federal registration procedures what they are today, the State departments

of agriculture and other agencies would be helpless to provide assistance

in times of local crises.”); id at 486 (W.A. Ruffin, Alabama Dept. of Ag.

and Industries) (“We oppose this bill because it abrogates State authority

and responsibility to regulate pesticide products intrastate... . Local

problems are best handled by knowledgeable personnel either recponsible

to or working in State government who are aware of local needs.”).

“ See House Comm. Hearing at 829 (Errett Deck, Wash. Dept. of Ag.):

see also id. at 796 (proposal of American Frozen Food Institute to allow

states to approve supplemental label for uses allowed in their states); 1971

Sen. Ag. Comm. Hearing at 754 (same).

industry ° s need for uniformity by providing for this in

the act.”

As the witness explained, uniformity of labeling require-

ments was important because of the expense | of producing

pesticide packaging for national marketing.’ As another

industry witness explained, “If each state were free to impose

labeling, packaging, or other restrictions on the manufacturer,

such regulatory procedures would become unworkable for

responsible national firms.”*' The president of the National

Agricultural Chemicals Association asserted that, with federal

registration of all pesticides, including intrastate pesticides,

“there would be no need or room for conflicting State or local

regulations.”

Witnesses for the state pesticide-regulating agencies took

differing positions on federal preemption of state authority to

impose labeling requirements. On one hand, a witness for the

New York agency responsible for regulating pesticides

indicated support for a general prohibition on state-imposed

labeling requirements, declaring that “[i]t makes it a lot easier

for the manufacturer to put on one label rather than 50 labels,

plus possibly a label for each of the territories.”*? On the

other hand, witnesses representing other state agencies op-

posed such a prohibition on the ground that it precluded the

states from developing labeling regulations that were stricter

* House Comm. Hearing at 281-283 (Robert L. Ackerly).

Chivvis, President, Chemical Specialties Manufacturers Assn.) (“To invite

States to ignore the Federal registration and impose their own separate

requirements on the label would create a nightmare. The distribution

practices of the industry preclude marketing one product in Maryland, one

in New York, ef cetera..”).

*" Id. at 802 (A.M. McVie, President of Elanco Products, Inc.).

* 1971 Sen. Ag. Comm. Hearing at 418.

* 1972 Sen. Ag. Comm. Hearing at 153 (Charles Frommer, Dir., Bur.

of Pesticide Control, NY State Dept. of Env. Conservation).

than those of the federal government.** Environmental groups

too supported the authority of state agencies to impose

labeling requirements stricter than those imposed by EPA.”

b. The development of Section 136v in the House and

Senate. To address the various concerns over the authority of

the state regulatory bodies raised by both the state agencies

and the pesticide industry, the House Agriculture Committee

amended the administration’s bill to add Section 24, a

provision expressly addressing the authority of the state

agencies. As passed by the Committee, Section 24 had three

subsections, which—after several significant changes—were

enacted into law and Codified in Section 136v. In the House

Committee's original version, subsection (a) would have

allowed the states to regulate the use of only one class of

pesticides (“restricted use” pesticides) more strictly than the

federal government, as long as the states did not require

permits or licenses to use such pesticides; subsection (b)

would have prohibited the states from imposing or continuing

in effect any labeling requirements different from those

“ Id. at 275 (Errett Deck, Wash. Dept. of Ag., on behalf of National

Assn. of State Depts. of Ag. and the Assn of Am. Pesticide Control

Officials) (“[S}tates which now require a quantitative percentage active

ingredient statement will be forced to accept labeling without the per-

centage of each active ingredient because of the labeling pre-exemption

[sic] provision of Sec. 24(b).”); id at 374 (Irwin Mann, Jr., Dire or,

Oregon Dept. of Ag.); id at 376 (Clinton E. Jeffers, Commissioner,

Colorado Dept. of Ag.) (“HR 10729 as introduced into the Senate . . . does

permit the States to restrict the uses of any pesticides under the authority

of Section 24(a), but subparagraph (b) of this section negates such

authority.”);1972 Sen. Ag. Comm. Hearing at 374 (Irwin Mann, §Jr.,

director Oregon Dept. of Ag.) (“We, therefore, urge that you give

consideration to amending Section 24(c) of HR 10729 to permit states to

determine their need for pest control, to determine directions for use, and

to register all pesticides distributed and used within their boundaries.”),

id at 376 (Clinton E. Jeffers, Comm’r, Colo. Dept. of Ag.).

** Id. at 137 (Sierra Club proposal); id. at 168 (William A. Butler, En-

vironmental Defense Fund).

imposed by the EPA; and subsection (c) would have left state

regulators with a very limited role in the registration of

intrastate pesticides, allowing them to “assist” EPA in

registering pesticides for intrastate distribution but otherwise

preempting them from imposing any requirements on the

labels for intrastate pesticides.”

In the debates on the House Floor, many House Members

opposed the proposed subsection (a) because it limited state

authority to establish stricter regulations on the use of

pesticides. As these opponents explained, precluding the

states from controlling pesticide uses “would gut the laws of

such States where such laws are stricter than the Federal

regulation.”*’ In response, Representative Kyl introduced an

amendment to subsection (a), which was adopted by the

House and subsequently enacted into law, protecting the

authority of state regulators to impose limitations on pesticide

use more stringent than those imposed by EPA.™*

Meanwhile, subsection (c) was revised by the Senate

Agriculture and Forestry Committee to reaffirm states’

authority to register pesticides for local uses. Although the

state agency witnesses had generally accepted the proposition

that labeling requirements should be uniform in order to

allow pesticide manufacturers to market their products

H10733 (Daily Edition, Nov. 9, 1971).

*” 117 Cong. Rec. H10740 (Daily Edition, Nov. 9, 1971) (Rep. Dow);

see also id (Rep. Helstoski) (“The preemption of State authority in

section 24 seems clearly aimed at the heart of these strong State

programs.”); id at H10741 (quoting letter from Henry L. Diamond,

Commissioner, New York Dept. of Env. Conservation); id (quoting letter

from Richard J. Sullivan, Commissioner, New Jersey Dept. of Env.

Protection); id (quoting telegram from Daniel W. Lufkin, Conn. Comm.

of Env. Protection); id at H10742 (Rep. Harrington); id. at H10743 (Rep.

Abzug); id. at H10743 (Rep. Anderson); id. at H10744 (Rep. Wolff).

** Id. at H10751.

nationally,’ they fought to maintain their authority to register

pesticides for local uses additional to those approved by the

federal government—and thereby to regulate the content of

supplemental labels for use only in their individual states.

As passed by the Senate, and subsequently enacted into law,

subsection (c) preserves state regulators’ authority to register

pesticides formulated for in-state use.°'

c. Discussion of Section 136v in the House and Senate

Committee Reports. The four House and Senate committee

reports describe in considerable detail the changes in

pesticide regulation Congress intended to accomplish through

the 1972 Act. The reports agree that “[t]he thrust of these

amendments is to change FIFRA from a labeling law into a

comprehensive regulatory statute that will henceforth more

carefully control the manufacture, distribution, and use of

pesticides.”°’ The reports discuss state agencies’ continuing

authority to regulate pesticide use and emphasize that the bill

* See, e.g., House Comm. Hearing at 834 (Maurice B. Rowe,

Commissioner of Virginia Dept. of Ag.) (“[W]Je can understand why

manufacturers, most of whom are distributing their products in many

states, need uniformity in labeling requirements.”); id. at 835 (recognizing

that national registration of pesticides would “lessen the problem of

manufacturers developing special labels for individual state require-

ments”); 1971 Sen. Ag. Comm. Hearing at 346 (Dr. Charles P. Ellington,

National Assn. of State Depts. of Ag.).

See 1972 Sen. Ag. Comm. Hearing at 153-155 (Charles H. Frommer,

New York Bureau of Pesticide Control); id at 269 (Errett Deck, Wash.

Dept. of Ag., on behalf of National Assn. of State Depts. of Ag. and the

Assn of Am. Pesticide Control Officials), id at 371 (James A. McHale,

Penn. Sec. of Ag.); id at 374 (Irwin Mann, Jr., director Oregon Dept. of

Ag.) id. at 376 (Clinton E. Jeffers, Commissioner, Colorado Dept. of Ag.).

* H.R. 10729 § 23(c) (July 19, 1972), reprinted in Sen. Ag. Comm.

Report at 71; see Conf. Comm. Report at 33 (subsection (c) “[mJakes it

clear that a state may provide registration to meet special local needs

(subject to disapproval by the Administrator)”).

* House Comm. Report at |; see also Sen. Ag. Comm. Report at 1-2;

Sen. Commerce Comm. Report at 8.

was intended to establish a “coordinated Federal-State admin-

istrative system to carry out the new program.”®°

The reports explain the changes in pesticide regulation

intended to be accomplished through the 1972 Act, and offer

detailed comparisons between old and new laws—without any

mention of any effect the 1972 Act would have on state

common law damages actions.” Each of the two Senate reports

contains the same, single sentence addressing the limitation on

state authority to impose labeling requirements: “Subsection (b)

preempts any State labeling or packaging requirements differing

from such requirements under the Act.”®° If Congress intended

subsection (b) to eliminate the longstanding right of persons

injured by mislabeled pesticides to receive compensation, it

expressed this intention in astonishingly oblique language.

The House Committee Report uses somewhat different

language, declaring that the bill “is intended to completely

preempt State authority in regard to labeling and pack-

aging.””° In their Brief in Opposition submitted to this Court,

Respondents relied on this language to support their assertion

that Congress intended to preempt any common law damages

actions that challenge the adequacy of warnings, instructions,

or claims made on pesticide labels.°’ But, whatever the House

Agriculture Committee may have meant in expressing an intent

to “completely” preempt state labeling authority, this intent

was not actually carried out in the 1972 Act. As the committee

report states, a key aspect of the intent to “completely”

preempt state labeling authority was that, under subsection (c),

** House Comm. Report at |; see id at 1-2, 16, 28; Sen. Ag. Comm.

Report at 2, 29-30; Sen. Commerce Comm. Report at 7, 29-30, 44.

“ See House Comm. Report at 1-2, 12-13; Sen. Ag. Comm. Report at

1-2, 4-6; Sen. Commerce Comm. Report at 8.

** Sen. Ag. Comm. Report at 30; Sen. Commerce Comm. Report at 44.

House Comm. Report at 16; see id. at 1-2 (“State authority to change

Federal labeling and packaging is completely preempted.”).

*” See Brief in Opposition, No. 03-388, at 7-8.

EPA, not the states, would register pesticides for additional

uses to meet local state needs.°* That provision was not,

however, enacted into law, and subsection (c) as enacted

preserves the states’ authority to register pesticides for

additional uses within that state and thereby to impose labeling

requirements on such pesticides. Moreover, to the extent that

subsection (b) generally precludes the states from imposing

labeling “requirements,” there is no support for construing that

term to preclude any common law damages remedies.

** *

As the history of the 1972 Act makes clear, the three

subsections of Section 136v together address a narrow, albeit

important subject in the regulation of pesticides—the ongoing

authority of state pesticide-regulating agencies in wake of the

expansion of federal pesticide authority effected by the Act.

Read together, these parts of Section 136v establish: (a) that

State agencies generally may regulate a pesticide’s use more

strictly than the federal government has chosen to; (b) that, in

doing so, states ordinarily cannot impose labeling require-

ments: and (c) states may impose their own labeling re-

quirements in registering pesticides for special local needs.

There is no basis for concluding that, in delineating the

ongoing authority of the state agencies, Congress had any

intent to eliminate any common law damages remedies.

CONCLUSION

The judgment of the court of appeals should be reversed.

** See House Comm. Report at 16 (“With regard to this Federal pre-

emption of labeling and packaging, EPA may, where appropriate, in

setting labeling and packaging requirements, give consideration to

regional, State, and local needs.”’).

Respectfully submitted,

DAVID T. GOLDBERG SEAN H. DONAHUE

99 Hudson St., 8th FI. Counsel of Record

New York, N.Y. 10013 1477 A St., N.E.

(212) 334-8813 Washington D.C. 20002

(202) 277-7085

Counsel for Amici Curiae

September 2004

03-388

Lodging submitted:

November 29, 2004

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