FIFRA Preemption After Bates v. Dow Agrosciences FIFRA Preemption After Bates v. Dow Agrosciences

FIFRA Preemption After Bates v. Dow Agrosciences

As first appeared in the ABA Section of Environment, Energy and Resources Agricultural Management Committee Newsletter.

The Supreme Court’s 2005 decision in Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788 (2005), spurred
debate about whether state law-based claims were preempted by federal law. Bates addressed
preemption of pesticide-related tort claims under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), 7 U.S.C. § 136 et seq. At issue was whether state law personal or economic injury claims based on failure to warn of the risks of a pesticide were expressly preempted by FIFRA section 136v, which
prohibits states from imposing “any requirements for labeling or packaging in addition to or different from
those required under [FIFRA].” Bates, 544 U.S. at 443 (quoting 7 U.S.C. § 136v(b)). The Bates Court
acknowledged that plaintiffs’ alleged fraud and failure-to-warn claims were preempted by FIFRA, since they were “premised on common-law rules that qualify as ‘requirements for labeling or packaging’” that paralleled FIFRA and would require a product label change. Id. at 446. However, the Court found that FIFRA did not preempt all claims based on state law. Id. at 444, 448–49. Based on FIFRA’s language, the Court found that for a particular law to be preempted, it must satisfy two conditions. “First, it must be a requirement ‘for labeling or packaging[,]’” indicating that “rules governing the design of a product . . . are not preempted.” Second, the rule “must impose a labeling or packaging requirement that is ‘in addition to or different from  those required under [FIFRA].’” The 7-2 majority opinion by Justice Stevens held that Bates’s claims for defective manufacture, defective design, negligent testing, and breach of express warranty would not qualify as a requirement for labeling and packaging and hence would not be pre-empted. Id. at 1799. This left room for FIFRA preemption to remain debated in certain situations.
 
Following Bates, several courts have addressed FIFRA related preemption arguments and have
indicated that certain types of state law claims will not be preempted. In particular, courts have held that state law claims, like fraud, related to statements in sales literature may not be preempted because Congress meant only to provide uniformity in labeling, and did not intend “to regulate sales literature generally and the legal obligations that can arise therefrom.” Indian Brand Farms, Inc. v. Novartis Crop Prot., Inc., 617 F.3d 207, 217 (3d Cir. 2010); see also Peterson v. BASF Corp., 711 N.W.2d 470 (Minn. 2006) (holding that state law claims against herbicide manufacturer predicated on allegations that the manufacturer marketed and sold equivalent herbicides for different crops at different prices was not preempted by FIFRA because claims were not based on manufacturers’ labeling requirements but statements).
 
Similarly, courts have held that warranty claims and strict liability claims also may not be preempted by
FIFRA. See Mortellite v. Novartis Crop Protection, Inc., 460 F.3d 483, 490 (3d Cir. 2006) (“FIFRA does
not preempt claims based on theories of strict liabilty, negligent testing, and breach of express warranty”).
For example in Snyder v. Farnam Companies, Inc., 792 F. Supp. 2d 712 (D.N.J. 2011), the Third Circuit
addressed whether various state law claims related to animal products containing insecticides were
preempted by FIFRA. Citing Bates, the court held that state laws that did not amount to labeling requirements were not preempted by FIFRA. Id. at 719. The court further noted that claims based on breach of express warranty, breach of implied warranty of merchantability, and unjust enrichment were not preempted by FIFRA. Id. The court also stated that state-based consumer fraud act and deceptive business act claims would also not be preempted by FIFRA to the extent they addressed statements in marketing brochures, which do not address labeling requirements. Id. at 719–20.
 
Similar decisions by other courts relevant to FIFRA preemption include:
  • Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691, 700–02 (D.N.J. 2011), holding that FIFRA did not preempt purchasers’ claims for breach of express warranty, breach of implied warranty, unjust enrichment, and fraud (based on statements in marketing brochure, which are not “labeling” under FIFRA);
  • DJ Coleman, Inc. v. Nufarm Americas, Inc., 693 F. Supp. 2d 1055, 1078–81 (D.N.D.2010), holding that FIFRA did not preempt commercial farm’s breach of warranty claims against herbicide manufacturer brought under state law, because such claims did not impose labeling requirements and, therefore, could not conflict with FIFRA. The court also held that state law fraudulent advertising claims were also not preempted if state law was “equivalent to, and fully consistent with, FIFRA’s misbranding provisions”; and
  • Gresser v. Dow Chemical Co., 989 N.E.2d 339, 350–51 (Ind. Ct. App. 2013), holding that state product liability claim not preempted by FIFRA and noting that “[t]he use of state tort law to further the  dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden [an applicator’s] compliance with FIFRA.”
In addition, courts have rejected preemption defenses related to certain requirements for the application of pesticides. See Croplife Am., Inc. v. City of Madison, 373 F. Supp. 2d 905 (W.D. Wis. 2005), amended, 04C0949C, 2005 WL 1467501 (W.D. Wis. June 20, 2005) and aff’d, 432 F.3d 732 (7th Cir. 2005) (holding  that city and county ordinances barring sale of commercial fertilizers containing phosphorus were not preempted by FIFRA because FIFRA does not supersede local regulation of pesticide use). For instance, in Wuebker v. Wilber Ellis Co., 418 F.3d 883 (8th Cir. 2005), the court held that FIFRA and a related  regulation, 40 C.F.R. § 153.155(a), authorizing manufacturers to distribute the pesticide at issue without adding colorization, did not preempt state law product liability claims related to alleged product defects due to lack of colorization. Id. at 888. The Wuebker court found FIFRA preemption did not exist because it could not conclude that it was the “clear and manifest purpose of [the EPA]” to prohibit states from requiring colorization where EPA would not. Consequently, the court held that plaintiff’s claim that the pesticide product needed to be colorized to be safe for application was not impliedly preempted by
FIFRA. Id. Similarly, courts have also held that FIFRA does not preempt state or local laws related to
limitations on where pesticides can be used.

However, at least one court has noted that although a state product liability claim related to exposure of
product may not be preempted by FIFRA, a product may presumptively be considered non-defective for
product liability purposes if it complies with federal or Indiana standards or regulations. Gresser, 989 N.E.2d at 345–46. In Gresser v. Dow Chemical Co., although the court held that plaintiffs’ claims were not
preempted by FIFRA, it did grant the defendants judgment because of the rebuttable presumption in
Indiana’s product liability statute that a product would not be defective if it complies with federal or Indiana
standards or regulations. Thus, the defendants obtained from the state law a form of presumption relief that it could not obtain by preemption.

Preemption under FIFRA will also likely be influenced by similar debates occurring with other laws, as
preemption has increasingly been a subject of litigation. Indeed, following Bates several courts have examined whether state law claims have been preempted by various federal statutes while considering Bates. For instance, in Mut. Pharm. Co., Inc. v. Bartlett, 133 S. Ct. 2466, 2479–80, 186 L. Ed. 2d 607 (2013), the Court relied on Bates to hold that a design defect claim under state law related to generic drug warnings was preempted by federal law or the Federal Food, Drug, and Cosmetic Act (FDCA). In reaching this conclusion, the Court noted that Bates embraced common law duties and that the state law at issue requiring that one’s product not be “unreasonably dangerous” involved a duty to make several changes, including alterationof a product or to ensure the presence and efficacy of a warning to avoid harm. Id. at 2479–80. This common law duty to redesign a label clearly conflicted with labeling and other requirements set by the FDCA, and it was preempted. Id.

Similar decisions by other courts that may be relevant to FIFRA preemption discussions include:
  • Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 179 L. Ed. 2d 1 (2011), referencing Bates while holding that National Childhood Vaccine Agricultural Management Committee, September 2014 11 Injury Act preempted all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects;
  • Williamson v. Mazda Motor of America, Inc., 131 S. Ct. 1131 (2011), holding that Federal Motor Vehicle Safety Standard giving auto manufacturers choice of installing either simple lap belts or lap-and-shoulder belts on rear inner seats did not preempt state law claims;
  • PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 180 L. Ed. 2d 580 (2011), holding state law imposing the duty to change a drug’s label upon generic drug manufacturers were preempted by federal regulations and the Drug Price Competition and Patent Term Restoration Act, which required a generic drug application to “show that the [safety and efficacy] labeling proposed . . . is the same as the labeling approved for the [brand-name] drug”;
  • Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187 (2009), holding that a state tort action against a brand-name drug manufacturer for failure to provide an adequate warning label was not preempted because it was possible for the manufacturer to comply with both state and federal law under the FDA’s “changes-beingeffected” regulation;
  • Del Real, LLC v. Harris, 966 F. Supp. 2d 1047 (E.D. Cal. 2013), using Bates in analysis of whether state law was preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act;
  • Am. Meat Inst. v. Leeman, 180 Cal. App. 4th 728 (2009), holding that a point of sale warning with respect to meat or meat products constituted “labeling” within the meaning of FMIA’s preemption clause, and thus, state laws point of sale warning requirements were preempted by FMIA;
  • Wagoner v. Exxon Mobil Corp., 832 F. Supp. 2d 664, 675–76 (E.D. La. 2011), using the Bates decision to address preemption issues under “almost identical” language found in the Federal Hazardous Substances Act (FHSA) and holding the analysis used in Bates applied;
  • Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365 (N.D. Cal. 2010), holding that FDCA and Nutrition Labeling and Education Act (NLEA) did not preempt state law claims arising from false or misleading labels with regard to beverages and geographic references; and
  • Reyes v. McDonald’s Corp., 2006 WL 3253579 (N.D. Ill. 2006), applying Bates to hold that a state Consumer Fraud and Deceptive Practices Act claim was preempted by NLEA to the extent that the plaintiff’s action was not identical to the requirements of NLEA. After analyzing the language of NLEA, the court determined that there is “no requirement under Bates that a state expressly adopt the exact language of the NLEA in order to allow a cause of action to proceed.” Id. at *6 (citing Bates, 544 U.S. at 447, 125 S. Ct. 1788). The court stated that “[a]s long as Plaintiffs seek to enforce only the requirements of the NLEA, and nothing further, the holding of Bates leads to the conclusion that [an] Illinois CFA claim is not unilaterally preempted.  . .” Id.
In summary, although Bates created new challenges for pesticide manufacturers seeking to assert a preemption defense, FIFRA preemption remains an important and viable defense against certain types of state-law damages claims. The availability of these defenses, and the extent of preemption under FIFRA, will likely be influenced by similar debates occurring with other laws, as preemption has increasingly been a subject of litigation. Accordingly, when considering FIFRA preemption issues it would be prudent to review how similar issues have been addressed under other laws.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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