Summary of a Recent
Judicial Development in
Pesticides

State Law Claims Not Based On Pesticide
Labels Held Not Preempted by the FIFRA

Harrison M. Pittman
Staff Attorney

The Illinois Appellate Court has reversed and remanded a trial court ruling that held that a farmer's state law claims against a cooperative and its general manager were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-36y (West 1999). Diehl v. Polo Co-op Ass'n, 766 N.E.2d 317 (Ill. App. 2002). The appellate court ruled that the state law claims were not preempted by the FIFRA because the claims were not a challenge to the pesticides' labels. See id. at 321.

In 1991, the general manager of the Polo Cooperative Association ("PCA"), Donnie Milby, recommended to Harold Diehl that he could combine a herbicide known as Bicep with another herbicide known as Banvel and apply it to his corn crop to eradicate a particular weed. See id. at 319. The Bicep label indicated that the Bicep-Banvel mixture could be used for application to no-till corn, and the Banvel label indicated that users should "avoid breathing vapors or spray mists" and avoid getting the chemical on their skin. See id.

Milby indicated to Diehl that the Bicep-Banvel recommendation was not prescribed on the pesticides' labels. See id. He also communicated to Diehl that he had previously used this mixture on his own crops. See id. Based on his conversation with Milby, Diehl believed that the mixture was not only safe for his crops but also safe for humans. See id. Milby advised Diehl in a subsequent conversation that there would be no problem with applying the Banvel-Bicep mixture on breezy days. See id.

Based on these recommendations, Diehl applied the pesticide mixture to his corn crop, traveling through its vapor mist each time he turned his tractor. See id. at 320. Diehl claimed that he suffered headaches, nausea, muscle pains, and joint pains as a result of being exposed to the mixture. See id.

Diehl brought an action for negligence against the PCA and Milby. See id. The PCA and Milby moved for summary judgment on the grounds that Diehl's claims were preempted by the FIFRA. See id. The trial court granted the defendants' motion for summary judgment. See id. Diehl appealed the trial court's decision to the Illinois Appellate Court. See id.

The Illinois Appellate Court explained that the FIFRA attempts to regulate the sale, use, and labeling of pesticides. See id. (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991-92 (1984)). The court also explained that the FIFRA requires registration with the Environmental Protection Agency ("EPA") of all pesticides sold within the United States. See id. (citing 7 U.S.C. § 136a(a)). The court stated that before any pesticide can be registered, the EPA must determine that the pesticide's label complies with the FIFRA's requirements, including a determination that "when the pesticide is used in accordance with its labeling that it will perform its intended function without an unreasonable adverse effect on the environment." Id. (citing 7 U.S.C. § 136a(c)(5)).

The court stated that the FIFRA requires manufacturers to propose label language which addresses various topics, including the pesticide's ingredients, directions for its use, and any information which the manufacturer has "regarding unreasonable effects of the pesticide on man or the environment." Id. (citing 40 C.F.R. § 152.50(f)(3)). The court noted that the FIFRA includes an express preemption clause which provides that a state "shall not impose or continue in effect any requirements for labeling . . . in addition to or different from those required under this subchapter." Id. (citing 7 U.S.C. § 136v(b)).

The court stated that other courts have ruled that "[the] FIFRA preempts state tort actions premised on a failure to warn or on a breach of an implied warranty." Id. at 321. The court also observed that a number of courts have ruled that the FIFRA preempts state law claims based on off-label statements that essentially repeated label contents. See id. (citing Kuiper v. American Cyanamid Co., 131 F.3d 656, 666 (7th Cir. 1997) (observing that an off-label statement that essentially repeated label warnings is preempted by the FIFRA) (also citing Worm v. American Cyanamid Co., 5 F.3d 744, 748-49 (4th Cir. 1993) (observing that claims based on representations that repeated those made on labels and literature distributed with herbicide are preempted by the FIFRA)).

The court acknowledged that Diehl did not claim that Milby's representations repeated information on the Bicep or Banvel labels or in any of the pesticides' product advertising. Id. at 322. Instead, Diehl claimed that "Milby was negligent in recommending an off-label combination without warning" him of any of the dangers the pesticide mixture posed to humans. Id.

The defendants' argued that even though the suggested pesticide mixture was off-label, the "labels' warnings remained operative and, therefore, [the] plaintiffs' claims essentially constitute failure-to-warn claims that are clearly preempted by [the] FIFRA." Id. at 322. The appellate court disagreed, concluding that "a label's safety warnings do not remain operative when a retailer makes an off-label recommendation. Plaintiff's claims, therefore, do not challenge the manufacturers' labels. A [state law] claim that does not challenge the labeling of a product is not preempted by FIFRA." Id. (citing Papas v. Upjohn Co., 985 F.2d 516, 520) and Worm, 5 F.3d at 747)). The court concluded that Diehl's negligence claim was not preempted by the FIFRA because the nature of his claim did not depend on a challenge to the content of the pesticides' labels. See id.

This case summary was prepared in September, 2002.