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.
�
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