ELR Citation: ELR 20172
No(s). 03-3847 (3d Cir. Aug 21, 2006)

The court partially vacates and remands an order of summary judgment dismissing blueberry farmers’ claims against a pesticide company for damage to their crops. The farmers argue that the damage resulted from mixing a new chemical insecticide containing a non-disclosed surfactant with previously used fungicides. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt the farmers’ liability, negligent testing, and breach of express warranty claims because they did not impose labeling requirements in addition to or different from those required under the Act. Moreover, to the extent that the farmers’ claims for negligent misrepresentation, fraud, and breach of the New Jersey Consumer Fraud Act are based on oral misrepresentations, the claims are not preempted. But to the extent that these claims rely on written misrepresentations that qualify as “labels” or “labeling” as defined by FIFRA, they are preempted. Because this issue was not fully briefed and argued on appeal, it is remanded to the district court. The district court must also determine on remand whether the farmers’ failure-to-warn claims create requirements in addition to or different from those under FIFRA. But the court upholds the dismissal of claims filed by seven farmers who signed releases with the pesticide company.