Summary of a Recent
Judicial Development in
Pesticides

Circuit Affirms Decision Allowing FIFRA
Preemption of Horse Rider's State Law Claims

Harrison M. Pittman
Staff Attorney

The United States Court of Appeals for the Eighth Circuit, in Netland v. Hess & Clark, Inc., 284 F.3d 895 (8th Cir. 2002), rehearing and rehearing en banc denied (May 13, 2002), has affirmed a ruling that a plaintiff's claims against a pesticide manufacturer for strict liability, failure to warn, and negligence were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136y, because the claims were challenges to the pesticide's label.

The FIFRA requires all pesticides sold within the United States to be registered with the Environmental Protection Agency ("EPA"). Netland, 284 F.3d at 898 (citing 7 U.S.C. § 136a(a) (1994)). Before registering any pesticide 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) (1994)). The FIFRA includes an express preemption clause providing 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. (quoting 7 U.S.C. § 136v(b) (1994)). The FIFRA also requires manufacturers to propose label language which addresses various topics, including the pesticide's ingredients, directions for its use, and any information which the manufacturers "‘are aware [of] regarding unreasonable effects of the pesticide on man or the environment.'" Id. (quoting 40 C.F.R. § 152.50(f)(3) (2001)).

Following his junior year in high school, Kim Netland applied the pesticide KenAg Bovinol ("Bovinol") to his horses. Id. at 896. Bovinol is a registered insecticide with the EPA. Id. at 897. The Bovinol label involved in this action reads,

May be fatal if swallowed, inhaled or absorbed through the skin or eyes. Rapidly absorbed through skin and eyes. Do not get into eyes, on skin or on clothing. Do not breathe vapor or spray mist. Wash thoroughly with soap and water after handling and before eating or smoking. Do not contaminate feed, water, foodstuffs, milk or milking utensils. Wear clean natural rubber gloves, protective clothing, and goggles, faceshield or equivalent. Wear a pesticide respirator jointly approved by the Mining Enforcement and Safety Administration (MESA) and the National Institute for Occu-pational Safety and Health (NIOSH) under the provisions of 30 C.F.R. Part 11. Wear impervious footwear or protective covers as shoes, boots, and other articles made of leather or similar porous materials may be dangerously contaminated.

Id., n.3.

Netland would usually spray the horses with eight to ten squirts of Bovinol and ride the horses immediately thereafter. Id. at 897. He wore no protective gear when applying the pesticide. Id. He did not read the Bovinol label. Id. Netland believed he absorbed the Bovinol through his skin because his clothes would often be damp after riding the horses. Id.

Doctors later discovered that Netland developed a serious blood problem known as acquired aplastic anemia. Id. The treatment for this condition, which included thirty- five blood transfusions, caused one of Netland's hips to fail and be replaced with a prosthesis. Id.

Netland filed a three-count complaint against Hess alleging claims for (1) strict liability on the grounds that Bovinol was defectively designed and unreasonably dangerous, (2) failure to warn users of the dangerous characteristics inherent in the Bovinol product, and (3) negligence and breach of warranty based on Hess' alleged failure to use reasonable care in the design, manufacture, and sale of Bovinol. Id. at 897-98. Hess moved for summary judgment arguing that the FIFRA preempted Netland's claims. Id. at 898. The district court granted summary judgment in favor of Hess.

The Eighth Circuit noted that it previously dealt with the issue of the FIFRA's preemption of state law claims in National Bank of Commerce v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). Id. In National Bank the Eighth Circuit ruled that once a pesticide label is approved by the EPA, the FIFRA preempted "state common law claims for ‘inadequate labeling or failure to warn.'" Id., National Bank, 165 F.3d at 608 (quoting Bice v. Leslie's Poolmart, Inc., 39 F.3d 887, 888 (8th Cir. 1994)). National Bank also stated that if a state common law theory "is premised on inadequate labeling or a failure to warn," it would be preempted because "the impact of allowing the claim would be to impose an additional or different requirement for the label or packaging." Id. (citing National Bank, 165 F.3d at 608).

Netland conceded that National Bank preempted his state law claims to the extent they were "based on labeling or packaging requirements in addition to or different from those required under the FIFRA." Id. at 899. Netland argued, however, that the court should apply its earlier precedent as stated in National Bank in light of both the United States Supreme Court decision in Medtronic, Inc., v. Lohr, 518 U.S. 470 (1996), and an United States Department of Justice amicus curiae brief submitted in Etcheverry v. Tri-Ag Serv., Inc., 22 Cal. 4th 316 (Cal. 2000), which expressed the government's view that the FIFRA "does not preempt any state law theories of liability, including failure to warn claims that implicate pesticide labels." ¹ Id. Netland also cited two state court decisions that found failure to warn claims were not preempted in light of the Medtronic decision and the Justice Department amicus curiae brief. Id.

The court, however, bypassed Netland's failure to warn and breach of warranty arguments, expressing the well established principle that "this court may not overrule one of its prior decisions unless it does so en banc." Id. (citing Minn. Citizens Concerned for Life v. FEC, 113 F.3d 129,131 (8th Cir. 1997)). The court added, that "until modified or overruled by the court en banc, National Bank is the law of this circuit." Id. Therefore, the Eighth Circuit ruled that Netland's claims for failure to warn and breach of warranty were preempted by the FIFRA.

The Eighth Circuit also affirmed the district court's decision that Netland's claim for strict liability for defective design and unreasonable dangerousness, as well as his claim for negligence, were preempted because the claims were "nothing more than a challenge to Bovinol's label for failure to warn against using the pesticide on horses before riding them." Id. at 899 (citing Netland, 140 F. Supp.2d 1011, 1017-19 (D. Minn. 2001)). With respect to these claims, Netland also asserted that only claims based on state common law that directly challenge the pesticide label are preempted by FIFRA. Id. He argued that his strict liability and negligence claims should not be preempted because each was premised on defective design, not upon a challenge to the pesticide label. Id. at 899-900.

The Eighth Circuit pointed out that "defectively manufactured or designed products properly labeled under FIFRA remain subject to state regulation." Id. at 900. However, "‘if the state law claim is premised on inadequate labeling or a failure to warn,'" which has the effect of imposing either additional or different labeling requirements, then the state law claim will be preempted under FIFRA. Id. (quoting National Bank 165 F.3d at 608).

The court stated that the determination of whether a state law claim is, in effect, challenging a pesticide's label, depends in part on whether the manufacturer would "choose to alter the label or the product" in an attempt to avoid liability for any error. Id. (citing Worm v. American. Cyanamid Co., 5 F.3d 744, 747-48 (4th Cir. 1993) (noting that line between mislabeling and defective design may not always be clear but may be resolved by asking whether manufacturer would alter the label or the product)). Without any specific analysis regarding the Worm consideration, the court ruled that "after careful review of the entire record" the claims were preempted as an "impermissible challenge to the pesticide's label." Id.

This case summary was prepared June, 2002.