Bates v. Dow

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

Mushroom to Nightclub Bouncer: Please Let Me In�I�m a Fun Guy!

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.

�

back to main page