Summary of a Recent
Judicial Development in
Environmental Law

Merely Alleging a Defect Does Not Automatically Avoid
FIFRA's Explicit Preemption Clause

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Brunault v. S.C. Johnson & Son, Inc., No. Civ.A.00-30059-FHF, 2002 WL 32538419 (D. Mass. Sept. 24, 2002), the United States District Court for the District of Massachusetts granted defendant S.C. Johnson and Son's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. The plaintiff brought a product liability action for injuries he sustained from applying bug repellant, which was produced by the defendant, to his skin. The court held that the plaintiff's claims-negligent manufacture, design, sale, and failure to warn-were preempted by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y.

Background

On June 10, 2000, the plaintiff applied bug repellant, produced by the defendant, to his person and alleged that he "suffered severe skin irritation, chemical burns, internal organ damage, and was hospitalized for a lengthy period of time . . . ." Id. at *1. The product's label was approved by the EPA and was registered under FIFRA. Id. Thereafter, the plaintiff brought the instant suit against the defendant for the personal injuries he sustained. Id.

Arguments

The plaintiff's complaint asserted that his "injuries were caused by the negligent design, manufacture, and/or sale of the product because it negligently failed to contain a skin irritant that would make a person aware that application to the skin is harmful." Id. Additionally, it "allege[d] that the defendant failed to provide reasonable warnings on the product's label, and negligently sold and packaged the product using advertising, coloring, packaging, and labeling that was similar to another product which was designed to be applied to the skin." Id.

In response, the defendant moved for summary judgment, "arguing that FIFRA expressly preempt[ed] the plaintiff's state law damages claims." Id. at *2. The plaintiff countered that FIFRA was "inapplicable because 'shared names, color schemes or artistic representations' [were] not a challenge to verbiage, and therefore [were] not a challenge to the labeling of a pesticide as governed by FIFRA" and that "his argument that a chemical irritant was missing from the product, [went] to the safety of the product's design, and therefore [was] not preempted by FIFRA. Id.

Analysis and Holdings

Quoting Grenier v. Vermont Log Buildings, Inc., 96 F.3d 559 (1st Cir. 1996), the instant court explained that "merely [calling] something a design or manufacturing defect [did] not automatically avoid FIFRA's explicit preemption clause." Id. at *3. Ultimately, the court held that "[b]ecause plaintiff's claim firmly rest[ed] on such visual cues as the product's color, sales displays, graphic design elements, etc., . . . the claim necessarily [arose] as a challenge to the product's EPA-approved labeling" and "[t]herefore . . . the plaintiff's express warranty claim [was] preempted by FIFRA." Id.

The case was decided on September 24, 2002.