ELR Citation: ELR 20167
No(s). 04-3721 (8th Cir. Aug 15, 2005)

The court holds that individuals' state-law tort claims against a pesticide manufacturer are not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) or a related U.S. Environmental Protection Agency (EPA) regulation. The individuals were injured after using the pesticide, which is designed to be applied to seeds before planting. Because the pesticide was the same color as the soil in the individuals' geographic region, they argued the product is defective since they were unable to tell whether they had soil or the pesticide on their skin. FIFRA §136v(b) does not expressly preempt their claims because the legal rules that underlie the individuals' claims do not require the manufacturer to label or package the pesticide in any particular way. Instead, the rules set requirements for product design. Nor does an EPA regulation that specifically authorizes the distribution of the pesticide without any coloration impliedly preempt the individuals' claims. Nothing in the regulation's language or its history shows whether EPA intended it to be a minimum standard that could be supplemented by the states or whether EPA intended for it to be the full extent of coloration regulation.