Summary of a Recent
Judicial Development in
Environmental Law

Challenge of Product Advertising that Merely Reiterates
Registered Label Is Preempted by FIFRA

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Williams v. Dow Chemical Co., No. 01 Civ. 4307(PKC), 2004 WL 1907311 (S.D.N.Y. Aug. 24, 2004), the United States District Court for the Southern District of New York granted in part and denied in part the defendants' motion for the court to reconsider and clarify portions of its previous ruling. Specifically, the defendants requested that the court reconsider its holding that the defendants failed to offer sufficient facts supporting their Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preemption argument.

Background

Plaintiffs sought damages for injuries allegedly sustained through exposure to the insecticide Dursban produced by defendant Dow Chemical Co. Id. at *1. The defendants' motion for summary judgment was granted in part and denied in part because they "failed to proffer the text of Dursban's EPA-approved labeling." Id. at *1, *3. Thereafter, the defendants sought reconsideration of their argument that the plaintiffs' claims were preempted by FIFRA. Id. at *1.

Arguments

The defendants argued that the "plaintiffs' state law claims should be dismissed as preempted by FIFRA's regulatory scheme." Id. at *3. Furthermore, the defendants argued that "the content of labeling is largely, if not entirely, irrelevant." Id. at *3.

Analysis and Holdings

In analyzing the merits of the defendants' motion, the court discussed the FIFRA preemption approaches of the Fourth, Ninth, and Eleventh Circuits. It found that under all three approaches, "FIFRA preempts state law claims when the challenged advertising merely reiterates the label. The difference is that the Fourth Circuit holds that FIFRA allows state law claims against advertisements that 'substantially differ' from the label, . . . while the Ninth and Eleventh Circuits hold that FIFRA preempts these claims as well." Id. at *3. However, in the case at bar, the defendants failed to provide the pesticide's EPA-approved label. Id. Instead, the defendants asked the court to take judicial notice of the pesticide's label on the EPA's website. Id. Such action would have required the court "to analyze, unaided by argument from the parties, off-label statements made to plaintiff and determine whether they substantially differed from the statements approved for on-label use," and the court "declined to do so." Id. In denying the defendants' motion for reconsideration of its FIFRA preemption ruling, the court stated that the defendants' "failure to attach by sworn affidavit the singular exhibit most relevant to their preemption argument would not now be cured, ex post, by the court's own internet research." Id.

The case was decided on August 25, 2004.