Bates v. Dow
Does the federal Insecticide,
Fungicide, and Rodenticide Act preempt state tort claims against herbicide
to Nightclub Bouncer: Please Let
Me In—I’m a Fun Guy!
another case on the federal preemption of state tort law—and yet another case
that may well go wrong.
farmers use Dow Chemical’s “Strongarm” herbicide to kill weeds. Strongarm
kills the weeds, but also causes peanut yields to plummet. Farmers sue Dow in
court, charging violations of
’ Deceptive Trade Practices Act, including advertising, fraud and design
According to Dow and the U.S. Solicitor General, the
federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and its effect on
state litigation preempts most state
tot suits, including the ones at bar. FIFRA does not allow states to enact (or
state courts to enforce) separate labeling requirements for pesti-, fungi-, or
other-cides. Plaintiffs and their
trial lawyers contend that their suits have nothing to do with the labeling
requirements, and are therefore not preempted.
To push that
argument in the Supreme Court, plaintiffs’ lawyers have retained the firm of
Kellogg, Huber. That would be “Huber” as in Peter Huber—well-known critic
of trial lawyers and gonzo environmental regulation, and a former O’Connor
clerk to boot. Great move, and great brief. If Dow’s next move (i.e., its reply brief in the Supreme Court) were to prove half as
clever, that would be progress. But
the case will still go south.
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