Summary of a Recent
Judicial
Development in
Environmental Law
State Law Claims Imposing Additional or Different Labeling or
Packaging Requirements Are Preempted by Federal Law
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In Hardin v. BASF Corp., 290 F. Supp. 2d 964 (E.D. Ark. 2003), the United States District Court for the Eastern District of Arkansas granted a manufacturer's motion for summary judgment, holding that the tomato growers' negligence and strict liability state law claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The growers sought compensatory and punitive damages against a rice herbicide manufacturer for damages allegedly caused by herbicide drift. Because the plaintiffs' claims challenged the content of herbicide's labeling, the claims were preempted by federal law.
Background
Eastern Arkansas commercial tomato growers brought suit against defendant BASF Corporation (BASF) claiming crop losses allegedly caused by drifting of the herbicide Facet manufactured by the defendant. Id. at 966. BASF designed Facet to kill barnyard grass on rice farms. Id. at 967. The plaintiffs asserted that Facet "pose[d] a substantial danger to non-target vegetation, particularly tomatoes." Id. They claimed that, "regardless of precautions followed in using Facet, it [was] a defective and unreasonably dangerous product." Id. at 966. BASF countered with a motion for summary judgment asserting that the plaintiffs' claims were preempted by FIFRA. Id. at 967.
Arguments
The plaintiffs sought relief under both negligence and strict liability causes of action. Id. at 967. Their negligence theory was based on the argument "that BASF negligently designed, manufactured, and supplied Facet and failed to test the herbicide and 'take measures to abate or remediate the damage caused by drift or movement of Facet onto off-target locations, including Plaintiffs' property.'" Id. They based their strict liability theory on the "charge that BASF supplied Facet in a defective condition-specifically, with the alleged capacity to harm non-target plants-rendering the herbicide unreasonably dangerous." Id.
BASF moved for summary judgment, asserting that the plaintiffs' claims were preempted by FIFRA. Id.
Analysis and Holdings
In the Eighth Circuit,
[i]t is immaterial whether an inadequate labeling or failure to warn claim is brought under a negligence or products liability theory. If a state law claim is premised on inadequate labeling or a failure to warn, the impact of allowing the claim would be to impose an additional or different requirement for the label or packaging.
Id. at 968.
To determine "whether a state law claim actually imposes a labeling requirement preempted under FIFRA," the Eighth Circuit test inquires as to "whether one could reasonably foresee that the manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label." Id. (quoting Worm v. Am. Cyanamid Co., 5 F.3d 744, 747-48 (4th Cir. 1993)).
Attempting to sway the test results in their favor, the plaintiffs argued "that BASF would not alter Facet's label to avoid liability because Facet [was] so toxic that no label warnings or application instructions could make the herbicide safe for the environment, namely non-target plants." Id. After reviewing the evidence and testimony proffered by the plaintiffs, the court stated, "[t]he record simply [did] not support Plaintiffs' claim that label instructions or warnings would do nothing to remedy Facet's alleged toxic affect on non-target plants." Id. at 970. The court concluded "that it [was] reasonable to foresee that BASF would alter its label to avoid liability for drift and damage to non-target plants by adding restrictions and limitations regarding aerial application in Arkansas." Id. at 971. For this reason, the court held that the plaintiffs' claims sought to impose additional and different labeling requirements beyond FIFRA's demands; therefore, their claims were preempted by FIFRA. Id.
The case was decided on September 26, 2003.