ELR Citation: ELR 21340
No(s). 3:92-0125 (M.D. Tenn. Oct 8, 1993)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FI-FRA) §136v(b) preempts state-law claims of defective marketing and failure to warn by homeowners who were allegedly injured by exposure to pesticides applied in their home by a licensed pest control company. The court holds that FIFRA §136v(b) expressly precludes establishment of any duties under state law that impose labeling requirements in addition to, or different from, the Act's requirements. Because the products at issue have labels approved by the U.S. Environmental Protection Agency (EPA), the manufacturers have fulfilled their duty to warn and the homeowners cannot claim that the products were mislabelled. The court holds that §136v(b) does not, however, preempt the homeowners' claims of defective design, breach of implied warranty of merchantability, and failure to test and study the pesticide products properly. Compliance with the implied warranty of merchantability does not create a labelling requirement inconsistent with FIFRA, because the underlying state-law duty arises from the sale itself, not from a labeling regulation. The court also rejects one manufacturer's claim that it effectively disclaimed the warranty. Although the manufacturer may have disclaimed implied warranties as to the pesticide users who saw its product labels, the disclaimer does not apply to plaintiffs, because as ultimate consumers, they never saw the labels. The court holds that FIFRA does not preempt the homeowners' claims of defective design and failure to test and study, because these claims are not based on labelling. Also, summary judgment on these claims is inappropriate, because genuine issues of material fact remain.

Counsel for Plaintiffs
David R. Smith
3121 Stouffer Tower
611 Commerce St., Nashville TN 37203
(615) 742-1775

Counsel for Defendants
Thomas I. Carlton
Cornelius & Collins
Nashville City Ctr.
P.O. Box 190695, Nashville TN 37219
(615) 244-1440