Peanut farmers brought claims against Dow alleging that its Strongarm pesticide stunted the growth of their peanut plants, despite the EPA-approved label which originally advertised that “Use of Strongarm is recommended in all places where peanuts are grown.” Apparently, after the plaintiffs first complained, Dow investigated, the label was subsequently changed (with approval by the EPA) to advise purchasers not to apply Strongarm to areas with pH of 7.2 or greater. Plaintiffs, however, alleging that Dow knew or should have known from the start that the pesticide would not be appropriate for their soil, sued for fraud, breach of warranty, and violation of the Texas DTPA. Dow argued that such claims were preempted under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which provides that States “shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” 7 U.S.C. §136v(b). Rejecting Dow’s claims, the Supreme Court noted that, “for a particular state rule to be pre-empted, it must satisfy two conditions. First, it must be a requirement ‘for labeling or packaging‘…. Second, it must impose a labeling or packaging requirement that is ‘in addition to or different from those required under this subchapter.’ A state regulation requiring the word ‘poison’ to appear in red letters, for instance, would not be pre-empted if an EPA regulation imposed the same requirement…. Rules that require manufacturers to design reasonably safe products, to use due care in conducting appropriate testing of their products, to market products free of manufacturing defects, and to honor their express warranties or other contractual commitments plainly do not qualify as requirements for ‘labeling or packaging.’ None of these common-law rules requires that manufacturers label or package their products in any particular way. Thus, petitioners’ claims for defective design, defective manufacture, negligent testing, and breach of express warranty are not pre-empted.” Although the express warranty was part of the product’s label, the Court, following its earlier decision inCipollone, reaffirmed the principle that a cause of action for breach of an express warranty is not a requirement imposed under State Law, but “asks only that a manufacturer make good on the contractual commitment that it voluntarily undertook by placing that warranty on its product.” The Court also rejected Dow’s argument for preemption on policy grounds, noting that “private remedies that enforce federal misbranding requirements would seem to aid, rather than hinder, the functioning of FIFRA. Unlike the cigarette labeling law at issue in Cipollone, which prescribed certain immutable warning statements, FIFRA contemplates that pesticide labels will evolve over time, as manufacturers gain more information about their products’ performance in diverse settings.” At the same time, the Court providing the following guidance to lower courts: “In undertaking a pre-emption analysis at the pleadings stage of a case, a court should bear in mind the concept of equivalence. To survive pre-emption, the state-law requirement need not be phrased in the identical language as its corresponding FIFRA requirement; indeed, it would be surprising if a common-law requirement used the same phraseology as FIFRA. If a case proceeds to trial, the court’s jury instructions must ensure that nominally equivalent labeling requirements are genuinely equivalent. If a defendant so requests, a court should instruct the jury on the relevant FIFRA misbranding standards, as well as any regulations that add content to those standards. For a manufacturer should not be held liable under a state labeling requirement subject to §§136v(b) unless the manufacturer is also liable for misbranding as defined by FIFRA.” Bates v. Dow Argosciences, LLC, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005).
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