ELR Citation: ELR 21449
No(s). 92-94-JD (D.N.H. Mar 18, 1993)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts common-law failure to warn claims against an insect repellent manufacturer. First, the court holds that, under Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992), it must base its preemption decision solely on FIFRA's express preemption provisions. The court holds that FIFRA §24v(b) expressly preempts common-law failure to warn claims. Congress intended to preclude states from regulating the labeling and packaging of pesticides, and permitting a jury to award damages against the manufacturer for failure to warn would impose a de facto labeling requirement under state law. The manufacturer satisfied FIFRA requirements by registering the repellent with the U.S. Environmental Protection Agency (EPA) and affixing an EPA-approved label to the repellent. The court next holds that plaintiffs' breach of implied warranty claim is not fatally defective despite the fact that the complaint did not specifically reference portions of the New Hampshire Revised Statutes relevant to such claims. The plaintiffs alleged sufficient facts which, if true, would entitle them to relief under state law. The manufacturer was aware of plaintiffs' legal theory and, therefore, was not prejudiced by the court's interpretation of the complaint as stating a statutory cause of action.

Counsel for Plaintiffs
Gregory J. Wenger
Devine & Wenger
Five Main St., P.O. Box 295, Plaistow NH 03865
(603) 382-6577

Counsel for Defendant
Jennifer A. Eber
Orr & Reno
One Eagle Sq., P.O. Box 709, Concord NH 03302
(603) 224-2381