Preemption of FIFRA Claims After Bates
 
February 14, 2006
 
Elizabeth M. Mitchell- Boston

The Supreme Court’s decision in Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788 (2005) has spurred much debate about whether pesticide-related tort claims can be preempted. The issue in Bates was whether the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)¹ barred a group of peanut farmers from suing herbicide manufacturer Dow Agrosciences for crop damage allegedly caused by Dow’s product. The peanut farmers claimed that, when used in the alkaline soil of West Texas, Dow’s product stunted their plants’ growth, a warning that Dow now includes on its product label. The farmers asserted claims for breach of warranty, fraud, strict liability and negligence, characterized as claims for defective design and manufacture and negligent failure to warn, as well as for violations of the Texas Deceptive Trade Practices Act. The district court dismissed all of the farmers’ claims on express preemption grounds and the Fifth Circuit affirmed. The Fifth Circuit based its decision on FIFRA’s express preemption clause, which prohibits states from imposing “any requirements for labeling or packaging in addition to or different from those required under [FIFRA].”² The Court of Appeals reasoned that all of the farmers’ claims, including those for design and manufacturing defects, were preempted on the ground that “a judgment against Dow [on such claims] would induce it to alter its product label.”³

In framing the issue before it, the Supreme Court did not purport to expand or change the precedent governing conflict preemption. Instead, the Supreme Court undertook an express preemption analysis focused on language contained in Section 136v, reversing the Fifth Circuit’s opinion and holding that most of the farmers’ claims could proceed. Based upon the language of Section 136v(b), the Court found that for a particular state rule to be preempted, it must satisfy two conditions. “First, it must be a requirement ‘for labeling or packaging[,]’” indicating that “rules governing the design of a product … are not pre-empted.”⁴ Second, the rule “must impose a labeling or packaging requirement that is ‘in addition to or different from those required under [FIFRA].’”⁵ Based on this analysis, the Supreme Court held that FIFRA’s prohibition of state “requirements for labeling or packaging” does not encompass claims for defective design, defective manufacture, negligent testing and breach of express warranty, reasoning that they do not qualify as requirements for labeling or packaging because “[n]one of these common-law rules requires that manufacturers label or package their products in any particular way.”⁶

The Court emphasized that in determining whether a state-law claim imposes a requirement for labeling, “[t]he proper inquiry calls for an examination of the elements of the common-law duty at issue.”⁷ Therefore, if the state law duty underlying a cause of action requires a manufacturer to label its products in a particular way, then that duty would set a standard for labeling. Indeed, the Court found that the Fifth Circuit was “quite wrong when it assumed that any event, such as a jury verdict, that might ‘induce’ a pesticide manufacturer to change its label should be viewed as a requirement.”⁸ According to the Court, “[a] requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement.”⁹

The Court went on to hold that the farmers’ remaining claims of negligent failure to warn and fraud might be preempted depending on whether they sought to impose a requirement that was “in addition to or different from” federal law. The farmers had argued that those claims are not preempted because they merely replicate FIFRA’s requirements that a pesticide label not contain “false or misleading” statements or inadequate instructions or warnings. While the Supreme Court agreed that the claims would not be preempted if they simply sought to impose “parallel requirements” to federal law, it held that it lacked sufficient evidence to determine whether the state fraud and failure to warn claims did in fact replicate federal law and remanded for further proceedings on this issue. The Court charged the Fifth Circuit with determining whether these claims are based on state-law duties that “diverge” from or are “equivalent” to FIFRA’s misbranding standards as applied by the EPA. In doing so, the Court explained its “equivalency” concept as follows: “[w]e emphasize that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre-emption. For example, were the Court of Appeals to determine that the element of falsity in Texas’ common-law definition of fraud imposed a broader obligation than FIFRA’s requirement that labels not contain ‘false or misleading statements,’ that state-law cause of action would be pre-empted by Section 136v(b) to the extent of that difference.”¹⁰ The Court further indicated that state-law requirements also must be measured against any applicable regulations of the EPA. As such, under Bates, a plaintiff’s claims are appropriate only when they either can prove a violation of FIFRA or address issues not covered by FIFRA.

Although Bates in many respects appears to limit the circumstances where a preemption argument may be advanced successfully under FIFRA, the Supreme Court did not preclude preemption claims in their entirety. Indeed, the Court’s decision leaves room for preemption arguments where the criteria outlined in Bates have been met, keeping FIFRA preemption as an important and viable defense.

For more information, e-mail Elizabeth M. Mitchell at elizabeth.mitchell@hklaw.com or call toll free, 1-888-688-8500.

¹ FIFRA regulates the use, sale and labeling of pesticides. See 125 S. Ct. at 1794-95. To lawfully sell a pesticide, the pesticide must be registered with the Environmental Protection Agency (EPA). See id. at 1795. EPA will register a pesticide if it determines that it will not cause unreasonable adverse effects on humans and the environment and that its label complies with FIFRA’s prohibition on misbranding. See id. Under FIFRA, a pesticide is misbranded if its label contains a statement that is “false or misleading in any particular,” including a false or misleading statement concerning the efficacy of the pesticide, does not contain adequate instructions for use, or omits necessary warnings or cautionary statements. See id.

² 7 U.S.C. § 136v(b)

³ 125 S. Ct. at 1793 (quoting Dow Agrosciences v. Bates, 332 F.3d 323, 331 (5^th Cir. 2003))

⁴ Id. at 1798 (emphasis in original)

⁵ Id. (emphasis in original)

⁶ Id.

⁷ Id. at 1799

⁸ Id. at 1798

⁹ Id. at 1799

¹⁰ Id. at 1803