The Federalism Project

American Enterprise Institute

Bates v. Dow

Does the federal Insecticide, Fungicide, and Rodenticide Act preempt state tort claims against herbicide manufacturers?

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Yet another case on the federal preemption of state tort law—and yet another case that may well go wrong.  

Peanut 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 Texas court, charging violations of Texas ’ Deceptive Trade Practices Act, including advertising, fraud and design problems.  

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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