The Illinois Supreme Court analyzed the impact of the express preemption provision of the Federal Hazardous Substances Act (FHSA) 77 in Busch v. Graphic Color Corporation 78 . In Busch the plaintiff alleged that the manufacturer of a paint stripper product failed to warn of the danger of death by asphyxiation, resulting in the death of her decedent from exposure to paint stripper fumes. The court reviewed federal case law on the preemptive scope of the FHSA, as well as the preemptive provision of the Act. This review revealed that “Congress intended to preempt all nonidentical state laws proposing cautionary labeling requirement addressing the same risk of illness or injury as the FHSA.” 79 Further, the court found that this preemption extended to common law failure to warn
Illinois Association of Defense Trial Counsel P.O. Box 3144, Springfield, IL 62708-3144 IDC Quarterly Vol. 16, No. 4 (16.4.M1) Page 18 of 31 claims seeking to impose requirements for labeling which are different from the federal law requirements. The Busch court relied upon the U.S. Supreme Court’s decision in Cipollone v. Liggett Group, Inc 80 . In Cipollone , the Court analyzed an amendment to the Cigarette Labeling and Advertising Act which barred the imposition of any state law requirement or prohibition regarding health warnings on cigarette packaging. 81 A plurality of the Court determined that Congress’ express prohibition of state regulation evidenced an intent to bar common law tort claims. 82 Applying this analysis to the FHSA, the Illinois Supreme Court determined that the FSHA’s express bar to state imposition of cautionary labeling requirements for substances governed by the labeling requirements of the FHSA extended to bar common law failure-to-warn claims that seek to impose different labeling requirements than those mandated by federal law. Similarly, failure to warn claims for products regulated under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) have also been deemed preempted. 83 In Traube v. Freund , the plaintiff alleged that his lake was contaminated by pesticide run off from an adjacent farm, which resulted in the death of thousands of bluegill fish. 84 The plaintiff sued the adjacent farmers, on whose property the pesticide was applied, as well as the manufacturer of the pesticide. The plaintiff sought recovery from the manufacturer for nuisance and for ultrahazardous activity. The trial court determined that these claims were preempted by FIFRA. The appellate court noted that FIFRA “expressly preempts any state-law claim that directly or indirectly challenges the adequacy of the warnings or other information on a pesticide’s approved product label.” 85 Further, the preemptive effect was not dependent upon the specific name the plaintiff applied to the cause of action. As the plaintiff’s nuisance and ultrahazardous activity claims represented an attack on the adequacy of the label, these state law claims were preempted.
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- United States Constitution, Product liability, Illinois Supreme Court, ILLINOIS SUPREME COURT DECISIONS