Summary of a Recent
Judicial Development in
Environmental Law

FIFRA Preempts State Law Packaging and Labeling Claims
Alleging Failure to Warn

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Essenmacher v. Orkin Exterminating Co., No. 00-CV-74094-DT, 2006 WL 760320 (E.D. Mich. Mar. 23, 2006), the United States District Court for the Eastern District of Michigan denied the plaintiff's request to modify or vacate the decision of the arbitration panel, which had held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted the plaintiff's state law claims. The plaintiff asserted claims for negligence, violations of the Michigan Consumer Protection Act, intentional misrepresentation, silent fraud, innocent misrepresentation, and trespass against Orkin Exterminating Company (Orkin), stemming from Orkin's treatment of the plaintiff's home for bugs. The court held that the plaintiff's state law failure-to-warn claims were preempted by FIFRA, but it awarded the plaintiff damages based on Orkin's negligent application of pesticides.

Background

The plaintiff hired Orkin to spray her house for carpenter ants and wasps. Id. at *1. The two parties entered into a contract under which Orkin would spray the plaintiff's house once a month and either party could opt to resolve any disputes through arbitration. Id. After Orkin sprayed the plaintiff's house for a few months, the plaintiff got sick and was forced to move out of her house. Id. Thereafter, the plaintiff brought suit against Orkin for negligence, violations of the Michigan Consumer Protection Act, intentional misrepresentation, silent fraud, innocent misrepresentation, and trespass. Id. Orkin successfully moved to stay the proceedings and compel arbitration pursuant to the parties' contract. Id. After 10 days of testimony and argument, the court held that Orkin negligently applied one pesticide; however, all other claims were decided in favor of Orkin. Id. The plaintiff then moved to vacate the arbitration award.

Arguments

The plaintiff argued that the arbitration award should be vacated or modified because the arbitration panel erred in finding as a matter of law that the plaintiff's failure-to-warn claims were preempted by FIFRA. Id. Specifically, the plaintiff alleged that the pesticide label should have warned against residing inside a treated facility or inhaling or swallowing pesticide dust, and should have recommended washing clothes and hands if they came into contact with the pesticides. Id. at *2.

Analysis and Holdings

To prevail, the plaintiff had to show that FIFRA's preemption provision, 7 U.S.C. § 136v, did "not apply to a claim by a consumer that an applicator failed to convey warnings on a pesticide label." Id. at *4. The court found the plaintiff's arguments to be unpersuasive. Id. Additionally, the plaintiff failed to cite a single case supporting her proposition that her failure-to-warn claims were not preempted by FIFRA. Id. Therefore, the court held that the plaintiff provided no reason to disturb the arbitration panel's factual findings. Id.

The case was decided on March 23, 2006.