Bates, Dennis, et al. v. Dow Agrosciences LLC (04/27/2005)

Question presented: Whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., preempts petitioners' state tort claims alleging that application of respondent's herbicide damaged petitioners' peanut crops?

By ERIC P. MARTIN & DAVID KEATING, MEDILL NEWS SERVICEBy the time 29 western Texas peanut farmers realized what a new weed killer was allegedly doing to their crops, it was too late. The farmers say the herbicide had already made their peanut crops unproductive.

The farmers had purchased Strongarm, an herbicide produced by Dow AgroSciences, in spring of 2000, the same year the U.S. Environmental Protection Agency approved the chemical to kill weeds in peanut plantations.

Strongarm did kill some of the Texans’ weeds, but the farmers say it also stunted their plants’ growth and led crop productivity to plummet. The farmers’ losses were estimated to be in the "multiple millions of dollars," according to Kimberly Keller, an attorney for the farmers.

When used in the alkaline soils of western Texas, the farmers discovered, Strongarm damages peanut roots, a consequence that is now indicated on the Strongarm label.

Although the farmers claim Strongarm was the only herbicide they used, Dow argues the farmers used other chemicals that could have harmed their crops. The company, a subsidiary of Dow Chemicals, also claims that weather conditions may have contributed to the farmers’ low productivity.

The farmers decided to sue in a Texas state court, saying they were misled by Strongarm retailers and were not warned that the herbicide was harmful in soils with high pH levels. As required by Texas law, they sent Dow a letter warning that they planned to sue. Their suit contained several charges, including false advertising, fraud and design flaws.

Rather than face suit in a state court, Dow asked a federal judge to bar the farmers from suing because, among other reasons, the Federal Insecticide, Fungicide, and Rodenticide Act trumped the state laws invoked by the farmers. The judge agreed, ruling against the farmers in 2002.

Known by the acronym FIFRA, the federal law was passed in 1947 to create nationwide labeling standards for pesticides. After several amendments, FIFRA now requires that pesticide manufacturers submit products to the EPA for registration and approval of the product labels.

The law’s preemption clause bars states from imposing "any requirements for labeling or packaging" that differ from federal standards.

The farmers appealed to the 5th Circuit Court of Appeals, arguing that FIFRA does not preempt Texas labeling laws that regulate pesticide effectiveness. This was because a 1978 change in the federal law freed the EPA from much of the burden of regulating how well pesticides work, they argued.

The farmers also argued that the lawsuit’s allegations were unrelated to labeling, since they involved statements made by Strongarm sellers.

Nonetheless, U.S. District Judge Martin Feldman, sitting temporarily on the appeals court and writing for a unanimous court, said FIFRA trumps "state laws that either directly or indirectly impose different labeling requirements."

Feldman said the farmers’ suit was label-related even though some claims were based on the statements of retailers. This was because, if allowed to succeed, the lawsuit would "induce Dow to alter its label."

Feldman agreed with Dow that claims that the herbicide didn’t work properly were label-based claims in disguise, since they were at their heart allegations that Dow did not warn the farmers. The fact that the EPA is no longer required to regulate how well pesticides work, Feldman said, is not enough to show that the state regulations are not preempted.

The court ruled in June 2003 that FIFRA trumped all of the farmers’ allegations.

In September 2003, the farmers asked the Supreme Court to review the case.

Keller said this case gives the Court a chance to weigh FIFRA against "every type of claim that could pop up" in state courts.

The attorney argued that if the Court rules as the 5th Circuit did, farmers will have no way to defend themselves against pesticides that do not perform as promised. Since FIFRA does not give farmers the right to sue pesticide manufacturers, farmers will have to federal regulators to ensure that pesticides work as companies say they will. But the EPA, Keller argued, no longer regulates the effectiveness of pesticides.

"Our basic argument is going to be [that] no one is watching this in-house," Keller said. "If farmers are not allowed to bring suit when their crops are damaged by a product, it allows and it licenses these companies to use farmers as their guinea pigs."

If the Court rules against the farmers, it would also be a blow to a state’s right to regulate products that come into the state, Keller said.

Dow attorney Dean T. Barnhard said Keller’s argument was both irrelevant and incorrect. He argued that the EPA still has authority to test the effectiveness of pesticides.

"[The] Petitioners leap to the faulty conclusion that just because the EPA requires submission of efficacy data selectively rather than automatically during the initial registration process, it does not exercise regulatory authority over label statements concerning efficacy," Barnhard said.

Bernhard argued that even if the EPA didn’t regulate pesticide efficacy, the wording of FIFRA is enough for the law to trump any state laws that affect what companies put on pesticide labels.

Barnhard was joined by U.S. Solicitor General Theodore Olson, who filed an amicus brief, in arguing in favor of FIFRA’s preemption over the state claim.

The Supreme Court accepted review of the case on June 28, 2004.

During the Court’s oral arguments on Jan. 10, 2005, the justices’ main concern appeared to be whether or not the lawsuit’s allegations were related to the product’s labeling.

The central issue became whether a jury verdict in Texas against Dow would force it to alter the label of its product.

David Frederick, arguing for Bates and the peanut farmers, insisted that his clients’ defective design and manufacturing claims challenge Strongarm's composition, not its label.

Justice Sandra Day O’Connor questioned why, if this was the case, the farmers had never submitted any evidence for defective design claims.

Frederick responded that because the case was sent to federal court so quickly, they never had discovery or the opportunity to present such evidence.

Frederick went on to argue that the 5th Circuit's decision creates a huge regulatory gap, because the EPA no longer regulates the efficacy of pesticides or the accuracy of claims on their labels, but at the same time preempts any action farmers could take against a faulty pesticide.

"If a manufacturer makes an overly ambitious statement as to efficacy, all the manufacturer has to do under the [preemption] theory is go to court and say we would have to change the label and thereby 136v(b) preempts it," he said.

Justice Stephen Breyer, however, appeared unconvinced.

"The statute sets up a perfectly good way of keeping this branded stuff off the market," he told Frederick. "All any complaining farmer has to do is to go to the EPA and ask them to pull it, and pulling it is an unbelievable sanction. It’s like the atomic bomb on the company."

Frederick said that the EPA doesn’t have that kind of authority, and even if it did, that wouldn’t address the issue of compensation for the farmers who were wronged.

Seth Waxman, arguing for Dow, told the Court that they a judgment against Dow would indeed force it to change the Strongarm label.

Justice John Paul Stevens, however, suggested to Waxman that if the labeling of a product said it had something in it that it actually didn’t, and you could prove that in court, the company making the product could remedy the situation by putting that ingredient into the product, a solution that would not involve the labeling.

"He could sell the product with the same label if he just changed the product to correct the misstatement," Stevens said.

Waxman insisted, however, that the farmers had never introduced evidence for a defective design claim, therefore the suit was directed at the labeling and not the product.

"We know that you can allege a design defect claim without impeaching the labeling," he said, "but we think that what [the farmers] are complaining about does impeach the labeling."

Lisa Blatt, arguing for the United States in support of Dow, said that labeling uniformity would be destroyed if the EPA-approved label were subject to jury-by-jury invalidation.

Blatt admitted, however, that the government has in the past taken the opposite position. Because of this, she later drew the ire of Justice Antonin Scalia when she stated that the preemption clause in FIFRA is clear and unambiguous.

"Well, the agency is allowed to change its position," she said.

"It’s one thing to change it," Scalia replied. "It’s another thing to change it and come in to say that the question is clear."

On April 27, 2005, the Court sided with Bates and the other peanut farmers, concluding that FIFRA, the federal law, does not preempt the farmers from seeking a remedy for pesticide injuries in state court.

Writing the lead opinion in the case, Justice Stevens concluded that the "long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against preemption." He added: "If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly."

Justice Breyer penned a one-paragraph concurrence to underscore the role the EPA has in overseeing FIFRA’s future implementation.

Justices Clarence Thomas and Scalia concurred in the judgment, but distanced themselves from the majority's reasoning that tips the scales against preemption in favor of the states and against the federal government. "These arguments, in addition to being unnecessary, are unpersuasive," Thomas wrote.