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18 III. PREEMPTION In a negligence action, the courts must determine whether a defendant had a duty toward others and if so, what standard care was required to avoid legal liability. In an ordinary case, state law determines those issues, but in an aircraft accident case, many federal laws impose requirements on different avia- tion participants. The courts must enforce federal law, and thus they must determine the extent to which a state law might be preempted because it intrudes on a preempted field or conflicts with spe- cific federal mandates. A. Preemption Basics Preemption is a function of the Supremacy Clause of the U.S. Constitution. The Supremacy Clause pro- vides â[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of the State to the Contrary notwithstanding.â 127 The Supreme Court has determined that â[i]t is basic to this con- stitutional command that all conflicting state provi- sions be without effect.â 128 Preemption thus prevents a state or local conflict with federal law or a federal authority to regulate because under the Constitu- tionâs Supremacy Clause, national law represents the collective interests of the states and takes prior- ity over the laws of any individual state.129 Federal law can preempt any inconsistent state or local law, including state law made by a court when determin- ing and enforcing a proprietorâs duties or standards of care in a negligence case.130 A federal law has a preemptive effect when it meets several criteria. Congressional intent is criti- cal. The Supreme Court assumes that Congress does not intend to preempt areas of law traditionally occu- pied by the states unless that is its clear and manifest intent.131 The Court determines such intent based on a statuteâs text and structure, and it may consider other evidence as well, such as legislative history.132 In some instances, courts may determine that fed- eral law has a preemptive effect based on an âexpressâ preemption clause in the text of a statute. The FAAct does not contain such a clause for remedial negli- gence actions. Congress added an express preemp- tion clause to the FAAct when it deregulated certain airline competition issues under the Airline Deregu- lation Act (ADA) in order to prevent the states from re-regulating what Congress had deregulated, but that clause has been interpreted to apply to those competition issues.133 The courts have determined that the presence of that clause does not stop courts from determining implied preemption under the FAAct. In some instances, the Supreme Court has determined that âCongressâ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.â 134 But the Court has determined that in general, an express preemption clause âimposes no unusual, âspe- cial burdenâ against [implied] preemption.â 135 132 CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (â[e]vidence of pre-emptive purpose is sought in the text and structure of the statute at issueâ). 133 See, e.g., American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995) (the ADAâs express preemption clause preempted state action concerning frequent flyer programs); Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (the ADAâs express preemption clause preempted state guidelines con- cerning airline business practices). The express clause states â[e]xcept as provided in this subsection, a State, polit- ical subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route or service of an air carrier that may provide air trans- portation under this subpart.â 49 U.S.C. Â§ 41713(b)(1) (2017). The Supreme Court has determined that this express pre- emption clause prevents states from re-regulating matters affecting airline competition that Congress deregulated under the Airline Deregulation Act. That Act âsought to pro- mote efficiency, innovation, and low prices in the airline industry through maximum reliance on competitive market forces and on actual and potential competition.â Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422, 1428 (2014) (internal quota- tion marks omitted). The ADAâs express preemption clause for certain airline competition issues also includes an express exception which states that the clause âdoes not limit a State, political subdivision of a State, or political authority of at least 2 States that owns or operates an air- port served by an air carrier holding a certificate issued by the Secretary of Transportation from carrying out its propri- etary powers and rights.â 49 U.S.C. Â§ 41713(b)(3). 134 Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992) (considering the preemptive effect of a federal law concerning labeling and advertising for cigarettes). 135 See Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 873 (2000) (determining that an actâs express preemption clause and express saving clause, individually or together, did not prevent the act from preempting state law under implied preemption principles). 127 U.S. CONST. art. VI, cl. 2. 128 Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (explaining the basis for preemption and different ways to determine a purpose to displace state law). 129 Hines v. Davidowitz, 312 U.S. 52, 62â64 (1941) (explaining the basis for preemption). 130 For example, when considering preemption under the Airline Deregulation Act the Supreme Court has noted that âthe ADAâs deregulatory aim can be undermined just as surely by a state common-law rule as it can by a state statute or regulation.â Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422, 1430 (2014). 131 Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 946 (2016) (noting that the courts start with a presumption that Congress does not intend to preempt state law, particularly âstate laws regulating a subject of traditional state power,â but courts will find state law preempted when it âcounters the federal purposeâ).
19 In aviation negligence cases, courts typically deter- mine preemption issues under the FAAct based on implied preemption. In one case, the Supreme Court stated that implied preemption can arise as follows: Pre-emption occurs when Congress, in enacting a federal stat- ute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accom- plishment and execution of the full objectives of Congress.136 More recently, the Supreme Court commonly refers to two categories of implied preemption: field and conflict. Under field preemption, a federal law is implied to preempt any contradictory state action â[i]f Congress evidences an intent to occupy a given field.â 137 This can occur if a âscheme of federal regula- tion . . . [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement itâ or the âfederal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subjectâ or when state law is not consistent with âthe object sought to be obtained by the federal law and the character of obligations imposed by it.â 138 When a field is preempted, federal law preempts state and local regulation âirrespective of whether state law is consistent or inconsistent with federal standards.â 139 For example, in the field of aviation safety, the Supreme Court has determined that â[a]s originally enacted, the Federal Aviation Act vested in the Fed- eral Aviation Agency all regulatory authority over aviation safety.â 140 It gave the FAA exclusive and âbroad authority to regulate the use of the navigable airspaceâ to ensure the âsafety of aircraft . . . efficient utilization of such airspace . . . and for the protection of persons and property on the ground.â 141 In fact, aviation ârequire[s] a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be ful- filled.â 142 On that basis, the courts will determine that state and local measures are preempted in this field, whether they contradict an express federal requirement or they enact requirements in the area that the federal government has exclusive authority to regulate. Under âconflictâ preemption, federal law is implied to preempt any state action that conflicts with a specific federal law. The courts will examine the state action and the federal law to determine whether âstate policy may produce a result inconsis- tent with the objective of the federal statute.â 143 This may occur where âcompliance with both federal and state regulations is a physical impossibility . . . or where the law stands as an obstacle to the accom- plishment and execution of the full purposes and objectives of Congress.â 144 Under conflict preemp- tion, a âstate statute is void to the extent it conflicts with a federal statute.â 145 For example, the Third Circuit considered the role of conflict preemption in an aircraft accident case that involved an alleged design defect. It deter- mined that FAA design regulations were not com- prehensive in nature, but that âthe FAAâs preapproval process for aircraft component part designs must be accorded due weight under a conflict preemption analysis.â 146 The court thus did not view FAA regu- lations concerning the issuance of a âtype certificateâ as preempting the field of possible actions, but where federal law conflicted with state requirements, the courts had to apply the federal law. 136 Louisiana Pub. Serv. Commn. v. F.C.C., 476 U.S. 355, 368 (1986) (discussing âvarietiesâ of preemption). See also Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 607 (2011) (observing that preemption also may be based on a conflict with the purposes of a federal act). 137 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984) (determining that regulations for nuclear energy did not preempt a cause of action for damages from radia- tion injury based on conflict preemption). 138 City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633 (1973) (considering preemption involving air- craft flight). 139 Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015) (determining that the Natural Gas Act did not pre- empt state antitrust enforcement because evidence showed that the Act was drawn to permit states to continue to act when the target of state law is not within the scope of the Act); Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 687â88 (3d Cir. 2016) (considering preemption at length under aviation laws applicable to a design defect claim). 140 U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 804 n.5 (1984) (discussing airline liability for an in-flight fire). 141 City of Burbank, 411 U.S. at 627. 142 Id. at 638. 143 Id. at 633. 144 Maryland v. Louisiana, 451 U.S. 725, 747 (1981) (dis- cussing preemption principles). See also Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 607 (2011) (observing that when preemption is based on a conflict with the purposes of a federal act a high threshold must be met). 145 Maryland, 451 U.S. at 747. 146 Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 708 (3d Cir. 2016) (determining in this case that aircraft manufacture and design claims were governed by state tort law subject to conflict preemption principles because the nature of the FAA regulations governing the design certification process were not as comprehensive as FAA regulations in other areas, such as pilot certification, pilot pre-flight and flight responsibilities, and flight rules.
20 B. Remedial Actions under the FAAct The courts have found that the FAAct does not preempt a remedial cause of action to recover for the injuries suffered in an aircraft accident. The Supreme Court has observed that the FAAct has always con- tained an express âsaving clause,â which preserves state remedial actions.147 The Court has also deter- mined that âa common-law right, even absent a sav- ing clause, is not to be abrogated unless it be found that the preexisting right is so repugnant to the stat- ute that the survival of such right would in effect deprive the subsequent statute of its efficacy, in other words, render is provisions nugatory.â 148 Thus, when a âcommon-law action and the statute are not âabso- lutely inconsistentââ they âmay coexist, as contem- plated by [the FAActâs saving clause].â 149 Courts have pointed to a variety of evidence con- firming that the FAAct does not preempt remedial causes of action. For example, the Third Circuit rejected an argument that the FAActâs express pre- emption clause under the ADA also preempted reme- dial causes of action. It determined that the ADA was âan economic deregulation statute that we find inap- posite to resolving preemption questions relating to the safety of air operations.â 150 The court noted that the FAActâs express saving clause and other factors demonstrate that it does not preempt remedial dam- ages actions. Among them, the FAAct requires airlines to obtain liability insurance to cover these damages claims.151 The court also noted that lawsuits to obtain a remedy for injuries are consistent with the FAActâs safety goals.152 The court observed that â[f]ederal pre- emption of the standards of care can coexist with state and territorial tort remedies.â 153 Courts have also noted that the FAAct does not contain a federal cause of action to remedy injuries from aircraft accidents. Thus, if the FAAct preempted state remedial actions, it would effectively immunize airlines and other parties from suit in these cases. The Supreme Court rejected such an argument, stat- ing â[n]o power to immunize can be derived from the language of [the FAAct].â 154 The Court has also noted when considering the FAActâs legislative history that federal aviation law did not alter historic state pow- ers (which provided for these remedial actions).155 C. Preemption Applications A preemption analysis can affect a remedial neg- ligence lawsuit in a number of ways. In some instances, a court may need to consider the effect of field preemption. The Supreme Court has deter- mined that Congress intended to federally preempt the field of aviation safety by consolidating control over aviation in one federal agency. The Court found that â[t]he Federal Aviation Act requires a delicate balance between safety and efficiency, and the pro- tection of persons on the groundâ and that the âinter- dependence of these factors requires a uniform and exclusive system of federal regulation if the congres- sional objectives underlying the Federal Aviation Act are to be fulfilled.â 156 Thus, the FAA has exclu- sive authority to regulate in this field.157 147 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 379 (1992) (determining that the saving clause in the FAAct pre- dated the ADA; in this case the saving clause did not under- mine the specific preemption enacted through the ADA con- cerning airline competition issues); Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 298 (1976) (discussing the FAActâs saving clause). That provision currently provides â[a] remedy under this part is in addition to any other rem- edies provided by law.â 49 U.S.C. Â§ 40120 (2017). This text was adopted in a 1994 recodification of the FAAct, which stated that it was enacted âwithout substantive change.â See REVISION OF TITLE 49, UNITED STATES CODE ANNOTATED, âTRANS- PORTATIONâ, PL 103â272, July 5, 1994, 108 Stat 745. Prior to that time, the saving clause stated that â[n]othing contained in this chapter shall in any way abridge or alter the reme- dies now existing at common law or by statute, but the pro- visions of this chapter are in addition to such remedies.â See 49 App. U.S.C.A. Â§ 1506, Remedies not exclusive. 148 Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 298 (1976) (determining that under pre-ADA law the Civil Aeronautics Board did not have to issue a determination concerning airline practices before a court could hear state causes of action on those issues). 149 Id. at 300. See also US Airways, Inc. v. OâDonnell, 627 F.3d 1318 (10th Cir. 2010) (conforming Tenth Circuit prece- dent to other jurisdictions finding that the ADAâs express preemption clause coexists with implied preemption under the FAAct). 150 Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 368 (3d Cir. 1999) (considering bases for preemption). See also Cha- ras v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (determining that the ADAâs express preemption clause did not preempt negligence actions by passengers injured during a flight). 151 Id. at 374â75. See also 49 U.S.C. Â§ 41112(a) (2017). 152 Id. at 374. 153 Id. at 375. 154 Nadar v. Allegheny Airlines, Inc., 426 U.S. 290, 300â01 (1976) (holding that the FAActâs predecessor did not preempt a common law action for negligent misrepre- sentation). The Court in Nadar noted that anther section of the FAAct expressly provided immunity from regulatory antitrust provisions, but it found no evidence for preempt- ing an individualâs right to pursue compensation for inju- ries sustained in an accident. 155 City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 635 (1973) (examining historic powers in connec- tion with determining that a local law could not ban jet aircraft based on noise concerns). 156 Id. at 638â39. 157 In City of Burbank, one dissenting justice, while agreeing with the majority on the issue of federal preemp- tion, observed âCongress clearly intended to preempt the States from regulating aircraft in flight.â Id. at 644.
21 Occasionally, this exclusive federal authority to regulate can result in a determination that certain actions against airport proprietors are preempted. For example, in one case, a plaintiff tried to bring a negligence action against an airport proprietor based on decisions about the capabilities of naviga- tional aids at the airport. But the court determined that the federal government had exclusive authority to make those decisions, and it thus found that this action against a proprietor was preempted.158 More often, courts find that the FAAâs exclusive power to regulate aviation safety preempts state stan- dards of care in a negligence case. For example, the Third Circuit observed that Congress created a com- prehensive system of regulations concerning flight activity in the FAAct and that the Act was âpassed by Congress for the purpose of centralizing in a single authorityâindeed, in one administratorâthe power to frame rules for the safe and efficient use of the nationâs airspace.â 159 The court noted that the FAA adopts regulations pursuant to a congressional direc- tive to prescribe minimum standards, and that under that authority, it has adopted a general aviation safety standard for aircraft in flight as well as other specific flight standards. As such, in this field the court found that âthere is no gap in the federal standards to fill with a state common law standard.â 160 The Third Cir- cuit determined that under these laws, âany state or territorial standards of care relating to aviation safety are federally preempted.â 161 Courts also frequently consider conflict preemp- tion when determining standards of care. Thus, they must determine the extent to which a proprietorâs actions were governed by a particular federal law. Under conflict preemption, the Supreme Court has determined that federal requirements can have a preemptive effect when they have the âforce and effect of lawâ and thus are âofficial, government- imposed policies prescribing binding standards of conductâ 162 as opposed to a requirement that is merely âdirectoryâ or not binding.163 The courts have consid- ered various types of federal requirements and deter- mined that some of them have the force and effect of law while others do not. For example, federal statutes and regulations are formally adopted, binding laws imposed on aviation, and they will preempt a state courtâs decisions that conflict with them. Because the FAA acts with exclusive regulatory authority over aviation safety, its administrative determinations can have a preemptive effect when they have the force and effect of law.164 âPre-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation.â 165 But agency materials are pre- emptive âonly when and if it [the agency] is acting within the scope of its congressionally delegated authorityâ because if not, the agency âliterally has no power to act, let alone pre-emptâ state legislation; thus, the âbest way of determining whether Con- gress intended the regulations of an administrative agency to displace state law is to examine the nature and scope of the authority granted by Congress to the agency.â 166 The courts also must consider the nature of an agencyâs administrative materials to determine whether they have the force and effect of law. The Supreme Court explained this issue in CSX Trans- portation, Inc. v. Easterwood,167 which considered two federal requirements involved in a railroad acci- dent. The Court observed that â[l]egal duties imposed on railroads by the common law fall within the scopeâ of what federal law could preempt for rail- road safety.168 But preemption depended âon whether 163 Leavenworth County v. Chicago, R.I. & P. Ry. Co., 134 U.S. 688, 698 (1890) (portions of a statute requiring an offi- cial corporate act were directory in describing methods for taking the act and the directory language was not intended to void an otherwise official act). 164 See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 635 (1973) (determining areas of exclu- sive FAA authority); Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999) (determining that the FAA has exclusive authority to regulate aviation safety and that federal law preempts local standards of care when they conflict with federal law and authority). 165 Louisiana Pub. Serv. Commn. v. F.C.C., 476 U.S. 355, 368 (1986) (finding that Congress had not expressly granted the FCC certain powers and it thus could not pre- empt state action in that area). 166 Id. at 374, 375 (an agency that had not been granted authority could not ânevertheless take action which it thinks will best effectuate a federal policy. An agency may not confer power upon itselfâ and such a result âwould be to grant to the agency power to override Congressâ). 167 507 U.S. 658 (1993). 168 Id. at 664. 158 Bethman v. City of Ukiah, 265 Cal. Rptr. 539 (Cal. Ct. App. 1989) (determining that state duties concerning nav- igational aids would be inconsistent with the FAAâs exclu- sive authority over them). 159 Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 369 (3d Cir. 1999) (citation omitted). 160 Id. at 374. The Third Circuit referred to the general standard of 14 C.F.R. Â§ 91.13(a), which prohibits âcareless or recklessâ operation of an aircraft. 161 Id. at 371 (original emphasis). 162 American Trucking Assâns Inc. v. City of Los Angeles, 133 S. Ct. 2096, 2102 (2013) (determining that the portâs requirements for trucks adopted as part of a form conces- sion contract had the force and effect of law and were pre- empted under an express clause of the Federal Aviation Administration Authorization Act of 1994).
22 the regulations issued by the Secretary cover the subject matter of the two allegations.â 169 In one instance in this case, the federal agency had adopted maximum speed limits for trains in that loca- tion âafter the hazards posed by track conditions were taken into account,â and as such, the âspeed limits must be read as not only establishing a ceiling, but also precluding additional state regulation.â 170 In another instance, an agency manual provided that states could select crossing systems and then implement them in accordance with federal standards. The Court deter- mined that the manual only stated the proper features of crossing systems and did not mandate legal require- ments for installation. Under the manual, states had to approve and install the devices, and states had joint responsibility with the railroads for traffic safety at crossings. Under these circumstances, the Court deter- mined that the manual provided âa description of, rather than a prescription for, the allocation of respon- sibility for crossing safety between the Federal and State Governments and between States and rail- roads.â 171 As such, while the speed limits preempted local standards, the manual did not (and applicable federal funding laws did not change that outcome). In aviation cases, the courts generally find that fed- eral guidance materials, such as advisory circulars and internal policies, do not have the force and effect of law and will not preempt a courtâs ability to determine and enforce local standards of care, although they might be evidence of that standard. For example, a Fifth Circuit case considered the role of FAA advisory circulars addressing landing procedures for aircraft landing at uncontrolled airports. The court determined that such circulars do not have the force and effect of law but are admissible as evidence of the standard of care that pilots customarily follow when approaching these airports. The circulars commented on standard traffic patterns and recommended broadcasting fre- quencies, both of which were at issue in the case. They thus were admissible as evidence of âsafety practices prevailing in the industryâ to the extent they reflected current practices.172 The court also believed that admit- ting such circulars furthered federal policy.173 FAA licensing or inspection actions may or may not preempt a local standard of care. A court might view these actions as agency enforcement decisions under applicable law rather than substantive legal man- dates, or the court might find that a particular term of approval has the force and effect of law. For example, a Third Circuit case determined that the FAAâs actions inspecting and approving type certificates for an air- craftâs design did not have a preemptive effect. The court determined that the FAA requirements for issu- ing those certificates only stated general standards under which manufacturers could obtain an FAA approval and they did not impose governing law. When issuing the certificates, the FAA was exercising its lawful enforcement discretion. But in a given case, the court believed that the requirements stated in a type certificate might require a conflict preemption analysis if it would be impossible to comply with both state standards and the requirements of the certifi- cate, or if state standards would create an obstacle to the purpose and objectives of Congress.174 The courts have sometimes considered when pre- emption under a federal law establishes a âceilingâ for a standard of care, or in other words, protects a party against liability so long as the party operates in compli- ance with the standard. In general, this analysis addresses whether the federal requirement imposes a mandate with the force and effect of law, requiring spe- cific compliance, or serves some other purpose. For example, in Easterwood, the Supreme Court deter- mined that the maximum speed limit that the agency carefully established for a train was a legal mandate, while the agencyâs crossing system requirements only stated proper features and did not mandate a particu- lar compliance.175 Courts consider the nature of the fed- eral requirement itself when determining the scope of its preemptive effect. If a federal agency determines the preemptive effect of its own actions, the Supreme Court nonetheless performs âits own conflict determination, relying on the substance of state and federal law and not on agency proclamations of preemption.â 176 169 Id. at 665. 170 Id. at 674. 171 Id. at 669. 172 Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1183â84 (5th Cir. 1975) (considering the use of FAA advisory circulars). 173 Id. at 1184. 174 Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 704â05 (3d Cir. 2016), cert. denied sub nom. AVCO Corp. v. Sikkelee, 137 S. Ct. 495 (2016) (determining that the FAAâs actions to inspect and approve type certificates for aircraft were a preapproval process that were not subject to express preemption and did not have a categorical pre- emptive effect on state law, but in a given setting these certificates might require a conflict preemption analysis). 175 CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 669 (1993) (considering different types of agency requirements). 176 See Wyeth v. Levin, 555 U.S. 555, 576 (2009). In this case, a patient was injured by improper use of a drug. The drug company knew of those side effects but did not warn of them. Instead, it included labeling information that had been approved through a federal process which relied on information supplied by the company. The Supreme Court determined that the FDA approval did not establish a âceil- ingâ that protected the company against a duty to provide additional disclosures. The FDAâs requirements were only a process establishing that the company had provided cer- tain information. The Court also determined that the com- pany could not rely on the FDAâs own preemption state- ment (the FDAâs regulations summarily stated that the labeling requirements established both a floor and a ceiling for required action and preempted state standards of care).