U.S. Supreme Court: WI tort claims not preempted by Fed. Insecticide, Fungicide, & Rodenticide Act.

• Author: Ziemer, David

Byline: David Ziemer

State failure-to-warn and misrepresentation claims are not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the U.S. Supreme Court held on April 27.

Pursuant to its authority under FIFRA, the Environmental Protection Agency (EPA) conditionally registered Strongarm, a new weed killer, on March 8, 2000, granting Dow Agrosciences LLC permission to sell the product in the United States.

The product was marketed to, and purchased by peanut farmers, according to whom, Dow knew, or should have known, that Strongarm would stunt the growth of peanuts in soils with pH levels of 7.0 or greater.

Strongarm's label stated, "Use of Strongarm is recommended in all areas where peanuts are grown," and Dow's agents made equivalent representations in their sales pitches.

The farmers used Strongarm on their farms - which have soils with pH levels of 7.2 or higher - and the pesticide severely damaged the peanut crops while failing to control the growth of weeds.

Prior to the 2001 growing season, Strongarm was reregistered with a supplemental label for distribution in New Mexico, Oklahoma, and Texas - the three states where crop damage occurred - warning, "Do not apply Strongarm to soils with a pH of 7.2 or greater."

After unsuccessful negotiations with Dow, Texas farmers gave Dow notice of their intent to bring suit under the Texas Deceptive Trade Practices-Consumer Protection Act (Texas DTPA). In response, Dow filed a declaratory judgment action in federal court, asserting that the claims were expressly or impliedly pre-empted by FIFRA.

The farmers counterclaimed, alleging strict liability, negligence, fraud, breach of warranty, and violation of the Texas DTPA. The district court granted Dow's motion for summary judgment, holding the claims expressly pre-empted by 7 U.S.C. 136v(b), which provides that States "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter."

The Fifth Circuit Court of Appeals affirmed, concluding that sec. 136v(b) preempts any state-law claim in which "a judgment against Dow would induce it to alter its product label." 332 F.3d 323, 331 (5th Cir. 2003), and that allowing the farmers' claims would have that effect.

The Supreme Court accepted review, and reversed in a decision by Justice John Paul Stevens. Justice Steven Breyer wrote a concurring opinion, and Justice Clarence Thomas dissented in...