FIFRA Preemption: A New Rule for the Millennium?

by Raphael Metzger, Esq.

FIFRA is an acronym for an obscure federal act known as the Federal Insecticide, Fungicide and Rodenticide Act.  FIFRA is also the subject of a body of law concerning federal preemption.  On this subject FIFRA has spawned a diversity of judicial opinion which ought be resolved by the Supreme Court.  What is all the fuss about FIFRA?  The fuss is about the interpretation of the preemption provision of FIFRA, which is found at 7 U.S.C. § 136v.  This section of FIFRA states:

(a)  In general
A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

From these provisions two points are clear.  First, Congress has generally preserved the power of the States to regulate pesticides.  Second, the States may regulate pesticides, but in so doing, they may not impose “requirements” for “labeling or packaging” beyond those of FIFRA.  The fuss is about what constitutes “requirements,” what falls within the scope of “labeling or packaging,” and what requirements are “in addition to or different from” those required under the FIFRA Act.

Over the past decade, the law of FIFRA preemption was developed in the lower federal courts.  By the last years of the millennium, most federal courts had held that state law claims alleging injury or damage from failure to warn of the toxic hazards of pesticides were preempted by FIFRA.  The effect of these decisions was that consumers injured by exposure to pesticides were denied relief in many common law actions for personal injury and crop damage against pesticide manufacturers.

However, the battle over FIFRA preemption was hardly over.  On September 16, 1998, the California Supreme Court granted review in a FIFRA preemption case in which the plaintiff sued a pesticide manufacturer alleging crop damage as a result of, among other things, inadequate warning of toxic hazards: Etcheverry v. Tri-Ag Service, Inc. Despite the consensus of federal authority that such claims were preempted by FIFRA, the Justice Department filed an amicus brief on behalf of the EPA in the California Supreme Court asserting -- contrary to most federal courts -- that FIFRA does not preempt common law damage claims, even if based on inadequate warnings on pesticide labels.

On March 2, 2000, the California Supreme Court issued its decision, holding that state law damage claims based on a failure to warn of the risks of using a pesticide are preempted by FIFRA.  Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 993 P.2d 366, 93 Cal.Rptr.2d 36.  The Court stated: “When a claim, however couched, boils down to an assertion that a pesticide’s label failed to warn of the damage plaintiff allegedly suffered, the claim is preempted by FIFRA.”  Id. at 335.  In reaching this conclusion, the California Supreme Court relied heavily on the consensus of the federal courts, and rejected the EPA’s arguments regarding FIFRA’s legislative history.  Etcheverry seemed to end the millennium by tolling a death knell for state law claims based on inadequate warnings on pesticide labels -- as long as they were registered with, and approved by, the EPA.

And then -- on December 28, 2000 -- just a few days before the end of the millennium, the Montana Supreme Court issued its decision in Sleath v. West Mont Home Health Services, Inc. (Mont. 2000) 16 P.3d 1042, concluding that FIFRA does not preempt any common law personal injury claims -- whether based on inadequate labeling or not.  Unlike the California Supreme Court, the Montana Supreme Court was persuaded by the reasoning of the amicus brief that the Justice Department had filed in Etcheverry, and held that FIFRA only preempted statutory enactments of state law regarding labeling and packaging - not common law damage claims.  In so doing, the Montana Supreme Court overruled McAlpine v. Rhone-Poulenc Ag. Co. (1997) 285 Mont. 224, 947 P.2d 474, in which the court had previously ruled that such claims were preempted by FIFRA.

The new millennium began with a string of decisions rejecting FIFRA preemption.  On July 10, 2001, the Ninth Circuit rejected FIFRA preemption in a most unusual case: Nathan Kimmel, Inc. v. Dowelanco (9th Cir. 2001) 255 F.3d 1196.  In Kimmel, a manufacturer of bags for use with pesticide sued Dowelanco, alleging that Dowelanco’s changes in label instructions constituted an unfair business practice and intentional interference with plaintiff’s prospective economic advantage.  Apparently, Dowelanco manufactured pesticide bags as well as pesticides, and decided to change the label on its pesticide to specify that only its own bags could be used to package it.  Dowelanco applied to the EPA for approval of the change of labeling and the EPA approved the new label, whereupon Dowelanco informed its bag competitor that it could no longer package the pesticide.  The district court held that the bag manufacturer’s claims were preempted by FIFRA.  Nathan Kimmel, Inc. v. Dowelanco (C.D. Cal. 1999) 64 F.Supp.2d 939.   Apparently, the case did not pass the smell test in the Ninth Circuit, which reversed notwithstanding FIFRA preemption.

The Ninth Circuit noted that the EPA had expressed its interpretation in its amicus brief in Etcheverry that FIFRA does not preempt any state law damage claims.  The Ninth Circuit observed that the EPA’s interpretation conflicted with the Ninth Circuit’s decision in Taylor AG Industries v. Pure-Gro (9th Cir. 1995) 54 F.3d 555.  However, the Ninth Circuit declined to decide whether the word “requirements” in FIFRA’s preemption provision applies only to positive statutory enactments or also encompasses common law damage claims.  Instead, the Court observed that “Section 136v(b) does not preempt all state-imposed pesticide labeling requirements,” noting that “FIFRA purports only to preempt those damages actions that impose requirements ‘in addition to or different from’ the requirements imposed by FIFRA.”  Id., 255 F.3d at 1202 (emphasis in original).  The Court reasoned that “Kimmel’s claim for intentional interference with prospective economic advantage imposes no such requirement and therefore falls outside the preemptive scope of FIFRA.”  Id.

A month later – on August 14, 2001 – Division 2 of the California Court of Appeal for the Second Appellate District issued its decision in Arnold v. The Dow Chemical Company (2001) 91 Cal.App.4th 698, 110 Cal.Rptr.2d 722.  Arnold was a case in which two infants were severely injured by domestic application of Dursban and other pesticides.  (One infant was hospitalized with pancreatitis and hepatitis; the other sustained in intrauterine stroke and was born partially paralyzed).

Cognizant of the pitfalls of FIFRA preemption, plaintiffs’ counsel (the author) filed a complaint against the pesticide manufactures which alleged only two causes of action: strict liability for defective design based on failed consumer expectations and breach of implied warranties.  The complaint did not mention labeling or packaging and did not assert any failure to warn of hazards.

The defendants filed summary judgment motions, asserting that the action was expressly and impliedly preempted by FIFRA.   They argued that any expectations that a consumer would have regarding the pesticides would depend on the information from the labels and that any implied warranties would necessarily contradict the pesticides’ labels.  The defendants therefore argued that the complaint was artfully pled to do an end run around FIFRA preemption and that the gravamen of the complaint was deficient labeling which is preempted.  The defendants also argued that the design defect claim was not viable, because a consumer could not have a reasonable expectation of safety for a product that is designed to kill living things and does so by complex biochemical means.  Lastly, the defendants argued that the breach of implied warranty claims failed for lack of privity.  The trial court granted summary judgment, holding that the complaint was preempted by FIFRA, that the consumer expectations test did not apply, and that the implied warranty claims failed for lack of privity.

The California Court of Appeal reversed, finding that the complaint alleged a true design defect claim:

Appellants’ claim is that, due to the content and properties of the products, they cannot safely be used in the home.  Period.  Thus, the remedy sought is a change in design of the products.  Appellants are not contending that, had they or their parents been aware of the warning labels, they would have declined to use the product or acted differently.  Nor do they allege that different warnings labels should have been used.  Indeed, other than the last pesticide administered by appellants’ father, the Arnold family did not have access to any warning labels.  Rather, appellants alleged that the product itself did not perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.  That is, the gravamen of the complaint is that a consumer would reasonably believe that pesticides are designed to eliminate pests within homes occupied by humans, without causing significant harm to the humans.  Thus, appellants’ complaint concerns a matter “outside the label.”

Arnold, supra, 91 Cal.App.4th at 716-717; 119 Cal.Rptr.2d at 736.

Rejecting the defendants’ arguments, the court found that the design defect claim based on failed consumer expectations was viable according to the California Supreme Court’s decision in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 573 P.2d 443, 143 Cal.Rptr. 225.  The Court also found that the privity requirement for the breach of implied warranty claim was satisfied, reasoning that the sale of pesticides intended for domestic application is analogous to foodstuffs, drugs and vaccines for which “the initial sale to distributor or retailer ... is sufficient to impose upon the manufacturer the responsibility of fulfilling the implied warranties which run to the benefit of the persons whom the manufacturer intended to be, and who in fact became, the ‘consumers.’”

The Court also disagreed with the defendants’ contention that a finding of no preemption would be contrary to the California Supreme Court’s decision in Etcheverry, because in Etcheverry the Court “determined that FIFRA preempts claims based on a failure to warn on EPA-approved labels, but does not preempt claims not predicated on the adequacy of the warnings on EPA-approved labels.”  Arnold, 91 Cal.App.4th at 710, 110 Cal.Rptr.2d at 731, citing Etcheverry, 22 Cal.4th at 335.

Nine days after the Arnold case was decided, the Indiana Supreme Court issued its opinion in The Dow Chemical Company v. Ebling (Ind. 2001) 2001 WL _______.  Ebling was another Dursban case in which two children were injured from an application of Dursban in their apartment.  They suffered respiratory disorders, developmental delays, brain damage, and seizure disorders.  The Eblings alleged claims against the pesticide manufacturers and against the pesticide applicator for failure to disseminate warnings of the hazards of the pesticides to plaintiffs and to apartment complex employees, and for design defect liability based on failure to meet ordinary consumer expectations.

The trial court denied the defendants’ summary judgment motions and the defendants appealed.  The Indiana Court of Appeal reversed in part, finding that all the claims predicated on inadequate warnings were preempted by FIFRA, but that the design defect claim was not preempted.  The Dow Chemical Company v. Ebling (Ind.App. 2000) 723 N.E.2d 881.   The defendants then appealed to the Indiana Supreme Court, which affirmed the decision of the Court of Appeal except as to the Eblings’ claim against the pesticide applicator which asserted that the applicator breached a duty which it had to disseminate toxic hazard warnings to the plaintiffs.  The Indiana Supreme Court reasoned: “While FIFRA requires pesticide manufacturers to affix an approved label to their product in order to sell it, applicators, either commercial or private, are not required to label anything . . . .  Because of the absence of an affirmative FIFRA labeling requirement for applicators . . . , we find that the alleged state tort law duty imposed upon applicators to convey the information in the EPA-approved warnings to persons placed at risk does not constitute a requirement additional to or different from those imposed by FIFRA.”  Id. 753 N.E.2d at 639.

Another recent case meriting discussion is Geye v. American Cyanamid Company (Tex.App. 2000) 32 S.W.3d 916, in which peanut farmers sued herbicide manufacturers for crop damage alleging strict liability, breach of express and implied warranties, and deceptive trade practices.  The trial Court granted summary judgment based on FIFRA preemption, but the Texas Court of Appeals reversed.  The Court observed that the EPA, with Congress’ approval, stopped evaluating pesticide efficacy for routine label approvals almost two decades ago, and that the EPA’s approval of a pesticide label does not constitute a determination by the EPA that the pesticide will be efficacious or will not damage crops or cause other property damage.  Id., 32 S.W.3d at 920.  The Court also noted that the EPA had formally “waiv[ed] review of the efficacy of agricultural pesticides in the registration process [to] enable the Agency to focus its ‘primary mandate under FIFRA’: investigating ‘the health and safety aspects of pesticides.’” Id., 32 S.W.3d at 919.  The Court disagreed with the reasoning of the California Supreme Court in Etcheverry as to the effect of the EPA’s actions and distinguished claims for pesticide inefficacy resulting in crop damage from claims for pesticide toxicity causing personal injuries:  “We hold that plaintiffs’ state law claims relating directly or indirectly to labeling are not preempted by FIFRA because such claims involve the efficacy of the products and not the risks to humans and the environment posed by the use of the product.”  Id., 32 S.W.3d at 921.  The defendants petitioned the Texas Supreme Court for review which was granted on June 21, 2001.

Thus, as of the present date, two state supreme courts have limited the scope of FIFRA preemption with respect to failure to warn claims in personal injury actions and a third will soon be reviewing such a decision.  Contrary to most federal courts and the recent decision of the California Supreme Court in Etcheverry, the Montana Supreme Court has determined that FIFRA does not preempt any claims alleging failure to warn of the toxic hazards of pesticides, because state common law actions are not “requirements” within the meaning of FIFRA’s express preemption provision (7 U.S.C. § 136v(b)).  Sleath, supra. The Indiana Supreme Court has determined that FIFRA does not preempt a claim that a pesticide applicator failed to convey warnings to an injured party, because FIFRA does not apply to applicators.  And the Texas Supreme Court will be reviewing a decision that FIFRA does not apply to cases alleging herbicide labeling inadequacies caused crop damage, because efficacy claims are not within the scope of FIFRA preemption.  Geye, supra. Further, the Indiana Supreme Court and the California Court of Appeal have continued a trend among lower courts, holding that design defect and breach of implied warranty claims are not preempted by FIFRA because such claims neither are based on, nor need be proved by reference to, pesticide labels.  Ebling, supra; Arnold, supra.

How will FIFRA preemption develop in the new millennium?  To date, the United States Supreme Court has only issued one opinion regarding FIFRA preemption, Wisconsin Public Intervenor v. Mortier (1991) 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532, which case did not involve a claim that FIFRA preempts state common law damage actions.  However, the Sleath case is a decision by the highest court of a state which conflicts with the law of FIFRA preemption as developed by the federal courts.  The defendants in Sleath have petitioned the U.S. Supreme Court for certiorari.  Due to the direct conflict between Sleath and federal appellate cases regarding FIFRA preemption, the Supreme Court should grant the petition for certiorari.  The Supreme Court may find all failure to warn claims preempted or may conclude, as has the EPA, that only positive statutory enactments are “requirements” which result in FIFRA preemption.  Until the Supreme Court holds otherwise, most states will find that design defect and breach of implied warranty claims are not barred by FIFRA preemption.  It promises to be an interesting new millennium for the knotty problem of FIFRA preemption.

This article was published in Mealey’s Emerging Toxic Torts on September 28, 2001.

Raphael Metzger is the principal of the Metzger Law Group, a Professional Law Corporation, based in Long Beach, California.  He specializes in toxic tort cases.  Mr. Metzger and his law firm have actively litigated pesticide injury cases, especially on behalf of injured children.