Summary of a Recent
Judicial
Development in
Pesticides
Producer's Claims of Failure to Warn
Preempted by FIFRA
Steven WhiteNational AgLaw Center Graduate Assistant
Summary of Decision
In Wuebker v. Wilbur-Ellis Co., No. 1:02-CV-400090, 2004 WL 2267231 (S.D. Iowa Sept. 27, 2004), the United States District Court for the Southern District of Iowa ruled that a plaintiff's claims were preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y, because the claims were not related to product design defect but stemmed from a failure to warn.
Background
Plaintiff Wayne Weubker purchased Agrox Premiere with Apron(c) (Agrox) from Wilfarm, L.L.C. See id. at *1. The plaintiff used Agrox in accordance with the printed instructions and immediately became seriously ill. See id. The plaintiff claimed that the Agrox was "defective in its design because it contained no distinctive odor so as to alert the consumer of its presence in the environment and contained no distinctive color, feel, or irritant so as to alert the consumer of its presence on the consumer's body." Id. The claims brought forth by the plaintiff were of product liability, implied warranty of fitness, implied warranty of merchantability, recklessness, and joint and several liability, all of which are based on the fact that Wilbur-Ellis Co., failed to include any type of warning device in the product. See id.
Defendant Wilbur-Ellis Co. claimed that the plaintiff's injuries were caused by his own fault and argued that the "[p]laintiff's claims are based solely on a failure to warn [and] are preempted by. . . FIFRA." Id. at *1-2. The plaintiff argued that none of his claims were based on labeling, but were based on a design defect and therefore should not fall under FIFRA. See id.
Analysis and Holding
The court explained that FIFRA is a scheme for regulating the packaging and labeling of pesticides which "provides a defense, arising from preemptions, against certain state law claims which are based on the product's labeling." Id. (citations omitted). In deciding the claim by the plaintiff, the court examined the basis of his claims to determine whether they were "based on the adequacy of the . . . label or based on a failure to warn." Id. at *5. The court noted that "'any claim concerning an additional warning to the customer/plaintiff regarding use of the product is a challenge to the content of the label and is thus preempted.'" Id. (citations omitted). The court held that the plaintiff's claims of state law liability were preempted by 40 C.F.R. § 153.155(b)(2), a regulation that implemented FIFRA, and that the plaintiff's claims were actually failure to warn claims, not product liability claims, and therefore preempted by FIFRA. See id. at *10-11.
The case was decided on September 27, 2004; this summary was posted Mar. 24, 2005.