Wednesday, August 17, 2016
FIFRA Pre-Emption of Pesticide Damage Claims
One of the situations that a particular farmer or rancher may face in which they will be limited in their ability to sue a manufacturer on a product liability claim involves damages arising from the use of registered pesticides. The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) authorizes the Environmental Protection Agency to regulate pesticide sale and use. Under FIFRA, it is unlawful to use any registered pesticide in a manner inconsistent with its labeling. While this “label use” provision gives the EPA authority to assess civil penalties against producers that use pesticides improperly or damage the environment, it also limits the ability of injured parties to sue pesticide manufacturers on either an inadequate labeling or wrongful death theory. A significant question has been whether FIFRA preempts state law damage claims for pesticide-related agricultural crop injury and whether FIFRA pre-emption of damage claims is limited to the specific subjects that EPA reviews at the time it first approves a pesticide product’s labeling.
Basically, FIFRA allows states to regulate the sale and use of federally registered pesticides to the extent the regulation does not permit any sales or uses prohibited by FIFRA, but a state cannot impose or continue in effect any requirements for labeling or packaging in addition to or different from what FIFRA requires. So, a big issue is whether a significant legal question concerns the extent to which FIFRA preempts state common law tort claims on the basis that the claims impose labeling or packaging requirements in addition to or different from those imposed by FIFRA. A majority of courts have held that FIFRA preempts all common law tort claims that challenge the adequacy of pesticide labels. However, while most courts have held that FIFRA preempts state law claims for failure to warn, actual defective label claims, and claims for breach of express and implied warranties, the courts have recognized that FIFRA does not necessarily preempt all state law claims. Indeed, nothing in FIFRA precludes states from providing a remedy to farmers and state law claims can be asserted based on alleged FIFRA violations to the extent that the claims would not impose a requirement that is in addition to or different from FIFRA requirements. However, a federal claim cannot be asserted.
A couple of recent case illustrate when state pesticide label claims are not preempted by FIFRA. In the first case, the plaintiff claimed that she developed cancer as a result of the use of the defendant’s pesticide glyphosate (commonly known as “Roundup”) for agricultural and non-agricultural purposes. She sued the defendant on the basis that the defendant failed to warn of the “carcinogenic nature of glyphosate” and was injured as a result. The plaintiff also sued under theories of strict liability, negligence and breach of implied and express warranties. The Environmental Protection Agency (EPA) had, before plaintiff’s use of pesticide, approved the product and the product label and had found that glyphosate is not carcinogenic to humans. The defendant claimed that the plaintiff’s claims were preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The defendant had registered the pesticide in accordance with FIFRA requirements by submitting a proposed label to the EPA along with supporting data and the EPA approved the label by deciding that the pesticide would perform its intended function without “unreasonable adverse effects” on human health or the environment. However, a registered pesticide can still be found to be misbranded and, as a result, be in violation of FIFRA. Misbranding means the label contains insufficient directions, warnings or cautionary statements to be “adequate to protect health.” The defendant claimed that because the EPA had determined that glyphosate was not carcinogenic, the defendant’s failure to include a warning label about the product’s carcinogenicity cannot constitute misbranding under FIFRA. The court rejected that claim because the documents the defendant relied on to support its position did not involve any final action of the EPA that had the force of law, or were regulations under the Food, Drug and Cosmetic Act and not FIFRA. Thus, the documents did not address the issue of misbranding under FIFRA. As such because FIFRA does not deem a registration of a pesticide to be conclusive as to whether a pesticide is misbranded (7 U.S.C. §136(a)(f)(2)), the defendant did not provide sufficient evidence to establish that glyphosate was not misbranded, and state requirements that a pesticide not be misbranded were not preempted. The court also rejected the defendant’s claim against the plaintiff’s design defect claim. Accordingly, the defendant’s motion to dismiss was denied.
The case is Mendoza v. Monsanto Company, No. 1:16-cv-00406-DAD-SMS, 2016 U.S. Dist. LEXIS 89003 (E.D. Cal. Jul. 8, 2016).
In the second case, the plaintiffs (a married couple) claimed that agricultural exposure to the defendant’s glyphosate pesticide (commonly referred to as “Roundup”) caused the wife to develop non-Hodgkin lymphoma in 2003. The defendant moved to dismiss the suit, claiming that the wife had a “suspicion of wrongdoing” in 2009 when she wrote an editorial discussing a possible link between glyphosate and her cancer which, according to the defendant, started the two-year statute of limitations running on her claim. The plaintiff asserted that she merely had a suspicion, that wasn’t confirmed until the World Health Organization designated glyphosate as a probably human cancer-causing agent in 2015. The court agreed with the plaintiff, and determined that the suit had been timely filed. The court also determined that the plaintiffs’ “warning-based” claims couched in negligence and strict liability failure to warn were not preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The court noted that state-law labeling claims are not preempted if they don’t impose any requirement that is different or beyond what federal law requires. The court determined that the plaintiffs’ claims were consistent with FIFRA’s labeling requirements, because the plaintiffs’ claim is that the defendant’s existing label (the one used from 1995-2004) was misbranded in that it mispresented the safety of the pesticide and was an inadequate warning.
The case is Sheppard v. Monsanto Co., NO. 16-00043 JMS-RLP, 2016 U.S. Dist. LEXIS 84348 (D. Haw. Jun. 29, 2016).