Summary of a Recent
Judicial Development in
Environmental Law

Supreme Court Holds State Laws Addressing Pesticide
Labeling Are Not Necessarily Pre-empted by FIFRA

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Bates v. Dow Agrosciences, L.L.C., 544 U.S. 431 (2005), the Supreme Court of the United States vacated the opinion of the Fifth Circuit, which held that the farmer petitioners' state law tort claims for strict product liability and negligence, as well as claims of fraud and breach of warranty, based on mislabeling of pesticide and resulting crop damages were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136. The Court reversed the Fifth Circuit's holding regarding the tort claims and remanded the fraud and breach of warranty claims due to insufficient briefing.

Background

Pursuant to FIFRA, the Environmental Protection Agency (EPA) registered a new pesticide named Strongarm, giving respondent Dow permission to market and sell the pesticide. Id. at 434. The pesticide's label stated, "[u]se of Strongarm is recommended in all areas where peanuts are grown," and Dow's sales team made the same representation to peanut farmers. Id. at 435. Twenty-nine Texas peanut farmers asserted that Dow knew, or should have known, that the pesticide would stunt the growth of peanuts planted in soils with a pH level of 7.2 or higher-a level typical in western Texas. Id. Petitioning farmers alleged that use of the pesticide severely damaged their peanut crops. Id.

Shortly thereafter, Dow reregistered the Strongarm label with the EPA and received EPA approval for a supplemental label for distribution and use of the pesticide in New Mexico, Oklahoma, and Texas. Id. The new registered label read, "[d]o not apply Strongarm to soils with a pH of 7.2 or greater." Id. After negotiations with Dow failed, the farmers gave notice to Dow of their intent to sue, as required by the Texas Deceptive Trade Practices-Consumer Protection Act (Texas DTPA). Id. Dow responded by filing a suit in federal court seeking a declaration that the farmers' claims were preempted by FIFRA. Id. The farmers counterclaimed asserting claims for strict liability, negligence, fraud, breach of warranty, and violation of the Texas DTPA. Id. at 435-36. The district court granted Dow's motion for summary judgment, and the Fifth Circuit Court of Appeals affirmed. Id.

Arguments

Dow asserted that the farmers' claims were expressly or impliedly preempted by FIFRA because if the farmers were successful on the merits, Dow would be required to change the pesticide's label. Id. It alleged that state labeling requirements which were in addition to or different from FIFRA labeling requirements were prohibited. Id. The petitioning farmers disagreed.

Analysis and Holdings

Finding that FIFRA § 136(b) preempted competing state labeling standards and statutory or common law rules that impose labeling requirements differing from FIFRA standards and its implementing regulations, the Court held that § 136(b) does not preempt any state rules that are fully consistent with federal requirements. Id. at 452. To be pre-empted, a state rule must satisfy two conditions: (1) it must be a requirement for labeling or packaging that governs the design of a product, and (2) it must be a requirement in addition to or different from FIFRA requirements. Id. at 444. The Court stated that none of the common-law rules upon which the tort actions were based required the manufacturers to label or package their products in a particular way. Id. at 442. The Court examined the legislative history of FIFRA and noted that it lacked "any indication that Congress meant to abrogate most of the common law duties long owed by pesticide manufacturers". Id. at 452. Accordingly, the farmers' tort actions sounding in strict products liability and negligence, both common-law duties, were not preempted by FIFRA.

On the other hand, the Court held that it did not receive sufficient briefing on the fraud and failure to warn claims. Id. at 453. These two claims, the Court stated, were based on common-law rules that qualify as requirements for labeling or packaging. Id. at 447. While these two claims were subject to § 136(b), they were not necessarily pre-empted; hence, they were remanded to determine whether the state labeling requirement diverged from FIFRA and its implementing regulations in any fashion. Id. at 447-48.

The case was decided on April 27, 2005.