ELR Citation: ELR 21608
No(s). 1:91CV162 (E.D. Tex. Feb 25, 1993)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt a state common-law claim for failure to warn adequately of the potential danger of exposure to an herbicide even though the herbicide was packaged with labels approved by the U.S. Environmental Protection Agency pursuant to the Act. The court first notes that there is no inherent conflict between FIFRA §24(b)'s preemption of state labeling requirements and state common-law damage claims. The court holds that FIFRA does not preempt the state common-law failure to warn claim. The fact that Congress did not identify the exact words to be used on insecticide packaging warnings and labels indicates that it did not intend to achieve a uniform labeling system. The court holds that a state common-law damage award does not contravene Congress' intent because FIFRA labeling requirements are more a minimum standard of safe conduct than a maximum. The court holds that §24(b) only preempts state statutory labeling requirements, because such requirements would be in direct conflict with FIFRA labeling requirements.

Counsel for Plaintiff
James W. Mehaffy Jr.
490 Park St., Beaumont TX 77704
(409) 833-8811

Counsel for Defendant
James M. Harris Jr.
Holmes & Harris
Petroleum Bldg., 550 Fannin St., Ste. 845, P.O. Box 830, Beaumont TX 77704
(409) 832-8382
George A. Frilot, Joanne C. Marier
Lemle & Kelleher
Pan-American Life Ctr.
601 Poydras St., 21st Fl., New Orleans LA 70130
(504) 586-1241