Summary of a Recent
Judicial Development in
Pesticides

Farmers' State Law Claims Preempted by the FIFRA

Lynn Cox
National AgLaw Center Research Assistant

In an action brought by alfalfa farmers against the manufacturer and the seller of an herbicide for breach of express warranty, misrepresentation, and strict product liability when the farmers' crop was damaged by an herbicide, the Arizona Court of Appeals has ruled that the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y, preempted each of the plaintiffs' claims. Dillon v. Zeneca Corp, 42 P.3d 598, 602-04 (Ariz. Ct. App. 2002).

William and Tamara Dillon began farming in 1997 and lost their first alfalfa crop to weed infestation. See id. at 600. Before planting their 1998 crop, they purchased an herbicide known as Eptam 7-E United Horticulture Supply. See id. Eptam 7-E was manufactured by the Zeneca Corporation ("Zeneca"). See id. United Agri Products ("UAP") and United Horticultural Supply sold Eptam 7-E. See id. The Dillons claimed that in making their decision to purchase Eptam 7-E, they relied on assertions made by Gerald Wheeler, an employee at United Horticulture Supply, "that there would be no waiting time between application and planting as with other herbicides and that the product will kill all weeds except Malva." Id.

Tom Simmons, the Dillons' employee, applied the herbicide to the alfalfa crop. See id. He testified that he followed the manufacturer's instructions that appeared on the Eptam 7-E label when applying it to the Dillons' land. See id. The Dillons planted alfalfa seeds immediately after their land was treated with Eptam 7-E. See id. About a month later, Simmons noticed that several portions of the crop appeared to be dying. See id. The Dillons contacted Wheeler about this problem. See id.

After interviewing William Dillon and Tom Simmons and inspecting the plants, Wheeler told Dillon that "'there was evidence that the plants had been exposed to Zeneca's Eptam 7-E' and that [o]ften plants grow out of the symptoms from the exposure.'" Id. A few days later, a Zeneca representative accompanied Wheeler to the Dillon's farm to investigate the Dillons' concerns. See id. Zeneca offered to reseed the Dillons' field, but the Dillons refused the offer and requested that they be reimbursed $63,000.00. See id. Zeneca refused the Dillons' request. See id.

The Dillons sued Zeneca and UAP for breach of express warranty, fraudulent misrepresentation, and strict product liability and asserted that Zeneca's offer to reseed their field was unconscionable. See id. Zeneca and UAP separately moved for summary judgment, arguing that the FIFRA preempts all state causes of action, such as the Dillons' claims, that are "inconsistent with a label approved by the Environmental Protection Agency . . . ." Id. The Dillons argued that the FIFRA did not "preempt their claims for common law misrepresentation, breach of an express warranty, strict product liability" because their claims were not "based upon inadequate labeling or packaging." Id. at 600-01. The trial court ruled that the Dillons' claims were preempted by the FIFRA. See id. at 601. The Dillons appealed the trial court's decision to the Arizona Court of Appeals. See id.

Before a pesticide or herbicide, such as Eptam 7-E can be sold in the United States, it must be registered with the Environmental Protection Agency ("EPA") in accordance with the FIFRA. See id. (citing 7 U.S.C. §§ 136(t), 136(u), & 136a). In addition, the labels of pesticides or herbicides "must be approved by the EPA and are subject to a comprehensive regulatory scheme that strictly governs their content." Id. (citations omitted). Once a label is approved, the "'FIFRA expressly provides for a defense, arising from preemption, against certain state law claims.'" (citing National Bank of Commerce v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999)). Specifically, the FIFRA provides that

A State may regulate the sale or use of any federally registered pesticide or device in the State, but if and to the extent the regulation does not permit any sale or use prohibited by this subchapter . . . . Such State shall not impose or continue in effect any requirement for labeling or packaging in addition to or different from those required under this subchapter.

Id. (quoting 7 U.S.C.A. § 136v).

The appeals court first considered the Dillons' argument that "their breach of express warranty cause of action is not preempted because it was based on off-label statements made by Wheeler." Id. The Dillons claimed that they relied upon Wheeler's "voluntary assertions that 'there is no waiting time to plant after spraying, as with other herbicides' and that 'Eptam 7-E will kill most weeds except for Malva.'" Id.

The court explained that the first statement reiterated language from the planting directions on the label that stated that "'[f]or preplanned applications, seeding should be done as soon as possible after treatment to obtain a maximum period of weed control.'" Id. It also noted that the label advised the consumer to "'[a]pply and incorporate 2 1/4 to 4 1/2 pints EPTAM 7-E per acre just before planting'" to alfalfa in the western region, which includes Arizona. Id. The court stated that "[d]irections for use are required to be on the label and must be approved by the EPA. Accordingly, FIFRA preempts any cause of action based on Wheeler's first statement." Id. at 601-02. (citations omitted).

The Dillons argued that Wheeler's second off-label statement about the herbicide's efficacy did not "mirror any language on the label and that it gave rise to an express warranty cause of action that is not preempted." Id. The Dillons relied on Cole v. Central Valley Chemicals, Inc., 9 S.W.3d 207 (Tex. App. 1999). See id. In Cole, the plaintiff bought an herbicide based on "a salesman's recommendations that it would provide better weed control and cost less than other herbicides they had used in the past." Id.

The court stated that "contrary to the Dillons' assertion that the Coles' crop was damaged by application of the herbicide that they had purchased," the court in Cole stated that the herbicide "'failed to control the weeds in the [plaintiffs'] corn crop, as a result, the corn yield was severely reduced and [they] suffered a monetary loss.'" (citation omitted). It added,

[i]n contrast, the Dillons' claimed economic loss is not the result of Eptam 7-E's failure to control weeds in their field, but its alleged harm to the alfalfa plants themselves. Thus, even assuming Wheeler's statement was an off-label express warranty, the Dillons suffered no damage as a result and their reliance on Cole is misplaced.

Id. (citations omitted).

The Dillons also argued that an express warranty that Zeneca placed on the Eptam 7-E label was actionable under Ariz. Rev. Stat. § 47-2313. Section 47-2313 provides the following:

1. [A]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. 2. Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. 3. Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

Id. (quoting § 47-2313).

The Dillons asserted that language on the Eptam 7-E label stating that "'[t]he Directions for Use of this product are believed to be reliable and should be followed carefully'" created an express warranty under § 47-2313. See id. The court stated that "'[i]t is very doubtful this language . . . creates an express warranty, as it refers to the manner of application and not to the results of the application.'" Id. It also stated that the statement was "not an affirmation of fact but merely an opinion about the reliability of the directions" and that it was not "a promise relating to the product, but words leading the user to apply the product correctly." Id. It noted that directions required approval by the EPA and a statement about reliability and "an admonishment to follow them carefully" did not create a warranty concerning the product's performance or safety. Id. Finally, the court explained that even if the statement did create an express warranty under § 47-2313, the Dillons' claim was preempted. See id. (citing National Bank, 165 F.3d at 602 (holding that breach of express warranty claim based on pesticide label was preempted by the FIFRA) (additional citations omitted).

The court determined that the Dillons' claim for fraudulent misrepresentation was also preempted by the FIFRA. See id. at 603. It explained that a claim for fraudulent misrepresentation requires "a false material representation made with the speaker's knowledge of its falsity or ignorance of its truth and with the intent that it be acted upon by listener; the listener's ignorance of its falsity, reliance on its truth, and right to rely on its truth; and consequent proximate injury." Id.

The court determined that Wheeler's statement that the herbicide required no waiting time between application and planting "merely reiterate[d] the directions on the label, and any cause of action based on the statement is therefore preempted." Id. It noted that the Dillons' claimed loss was not a result of the herbicide's failure to control weeds, but its alleged harm to the alfalfa plants themselves. See id. It concluded that "the Dillons failed to demonstrate they suffered a consequent and proximate injury as the result of their reliance on Wheeler's statement that 'Eptam 7-E will kill most weeds except Malva.'" Id.

Finally, the court rejected the Dillons' claim that 7 U.S.C. § 136j(a)(1)(B) allows a "state law causes of action for strict product liability when a product does not perform according to its label." Id. at 603. To establish a claim for strict product liability, a plaintiff "must demonstrate that the product was in a defective condition that made it unreasonably dangerous, that the defective condition made it unreasonably dangerous, that the defective condition existed when the product left the defendant's control, and that the defective condition proximately caused the plaintiff's injuries." Id. (citation omitted). A product may be unreasonably dangerous due to "a manufacturing defect, a design defect, or an informational defect encompassing its instructions and warnings." Id.

The court stated that "[w]hen a state law cause of action for strict product liability against a pesticide manufacturer is based on a theory of either a defective design or a manufacturing defect, it is not preempted." Id. It also stated that "'[w]hen a claim, however couched, boils down to an assertion that a pesticide's label failed to warn of the damage plaintiff allegedly suffered, the claim is preempted by FIFRA.'" Id.

The court noted that it found nothing in the record to explain the factual basis for the Dillons' assertion that Eptam 7-E was unreasonably dangerous. See id.<> It therefore ruled that "[t]o the extent the Dillons' product liability cause of action [was] premised upon a failure to warn or defective directions," it was preempted by the FIFRA. Id. at 604.

The case was decided on February 26, 2002; this summary was posted August, 2003