ELR Citation: ELR 20615
No(s). 93-5004 (W.D. Ark. Oct 25, 1993)

The court holds that §136v(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts homeowners' state law tort claims against a pesticide manufacturer for negligent failure to warn or properly label the insecticide, but that FIFRA does not bar claims for failure to use ordinary care in the insecticide's manufacture, in the selection of materials used in the insecticide, and in the formulation, inspection, and testing of the insecticide. Section 136v(b)'s uniformity requirement mandates that states may not impose any labelling or packaging requirements in addition to or different from those required under the Act. After an extensive discussion of the relevant case law considering the preemption issue, the court first holds that §136v(b) expressly preempts the homeowners' claims for failure to warn or properly label the insecticide. The preemption language of §136v(b) is at least as broad as that of the Public Health Cigarette Smoking Act of 1969, which the Supreme Court held to preempt common-law failure to warn claims related to cigarettes in Cipollone v. Liggett Group, Inc., 499 U.S. 935 (1991). The court holds, therefore, that successful common-law actions for inadequate insecticide labelling impose requirements in addition to or different from those required by FIFRA and are thus preempted. The court rejects the argument that common-law actions merely provide for damages in the event of injury while allowing the manufacturer to retain the labelling that is sufficient under FIFRA but insufficient under state law. Without further elaboration, however, the court holds that FIFRA does not preempt the remainder of the homeowners' claims.

Counsel for Plaintiffs
Nicholas H. Patton
4122 Texas Blvd., P.O. Box 1897, Texarkana TX 75504
(501) 774-3206

Counsel for Defendant
Tilden P. Wright III
Davis, Cox & Wright
19 E. Mountain St., P.O. Drawer 1688, Fayetteville AR 72702
(501) 521-7600