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The case of Cipollone v. Liggett Group provides a good primer for defense counsel on analyzing a failure to warn complaint in liability cases that have been brought to the federal level. The defense's first strategy should be to seek a dismissal of the causes of action in order to get the case out of the federal courts. The interpretation of the federal statutes involved in Cipollone has become a standard for interpreting other federal statues in such suits, and is discussed.

The development of a broad federal statutory scheme for regulating medical devices has limited state tort claims but has also provided manufacturers with certainty and uniformity among states. The Medical Device Amendments identify the scope of the US Food and Drug Administration's authority to regulate sophisticated medical devices. The comprehensiveness of the statutes has lead to broad preemption. These products require the courts to perform careful balancing because many users are facing serious health situations.

In the 1992 decision Cipollone v. Liggett Group, Inc., the U.S. Supreme Court dramatically scaled back the doctrine of implied preemption.(1) Although the case concerned claims against cigarette producers, the [...]

Insurance companies should study the issue of federal preemption of common law tort claims when considering insuring a company for product liability risks. The preemption claim may apply if federal regulations create a standard for the failure to warn through labels on certain products. If preemption is expressed or implied in the federal regulations, companies who have met federal labeling laws may be immune from some common law tort claims.

Liability litigation for injury claims from environmental tobacco smoke, and the issue of the tobacco industry's duty to warn of health threats, should be based on a public law approach. This would solve the problems of the indeterminate plaintiff and indeterminate defendant by calculating damages based on attributable risk and market share. Preemption of failure to warn claims was found in Cipollone v. Liggett Group Inc, but this should be overcome by proof of causation.

The US Supreme Court found that the express legislative intent of the 1969 amendments to the Federal Cigarette Labeling and Advertising Act was to preempt state tort claims such as those brought in Cipollone v. Liggett Group, Inc. A plurality of the Court ruled that the plaintiff's claims for failure to warn, fraudulent misrepresentation and others were subject to the preemption defense because Congress had intended the federal statute to provide exclusive remedies. This decision, in conflict with prior case law, will have the effect of limiting tobacco industry liability.

The US Supreme Court's decision in Cipollone v. Liggett Group, holding that state tort claims for failure to warn were preempted by the Cigarette Labeling and Advertising Act (CLAA), should mean that similar state tort claims based on pesticides products liability are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Because of the differences between FIFRA and CLAA, however, state tort claims against pesticide manufacturers will not be preempted. FIFRA specifically allows for state regulation, including remedial, and provides no single labeling content requirement, which leaves compliance largely a matter between states and manufacturers.

The US Supreme Court's plurality opinion in Cipollone v. Liggett Group, holding that the Cigarette Labeling and Advertising Act preempts all state tort claims against tobacco manufacturers, demonstrates different judicial views on preemption. The majority of the Court, seizing on statutory language prohibiting state labeling or advertising restrictions inconsistent with the Act, reasoned that Congress intended to preempt state tort claims because preemption of other claims is not expressly mentioned. A minority of the Court construed the provision broadly, seeing any mention of preemption as statutory intent to prohibit all state tort claims.

Cipollone v. Liggett Group struck down implied preemption of state common law actions, limiting preemptive powers to those federal statutes containing provisions on the subject. This bodes well for toxic tort litigation since all major federal environmental laws have clauses on preemption. There is now a presumption against preemption and and courts must give preemption clauses narrow interpretations, bearing this presumption in mind.

The US Supreme Court in Cipollone v Liggett Group, Inc held that federal law preempts state law in failure to warn claims, but not in claims of breach of express warranty, conspiracy to defraud or fraudulent misrepresentation. This decision is a setback for manufacturers who have relied on preemption as a defense in product liability cases. However, the court interpreted the statutory preemption provision inconsistently, which will make the decision difficult to apply by lower courts. The preemption issue has not been settled and will need further clarification.

The Supreme Court's decision in Cipollone v Liggett Group split on the issue of preemption so as to allow both plaintiff and defendant to claim victory. The Court held that federal statutes which expressly preempt state law must be given narrow interpretation. However, the case may have had a more profound effect if the law of implied preemption is irrelevant where a federal statute expressly preempts state law. This could undermine Congress's intention to protect some industries from multistate regulation. Manufacturers should lobby for extreme clarity in statement of preemption legislation.