On
April 27, 2005, the Supreme Court ruled that
farmers whose crops are damaged by federally approved pesticides
or herbicides may pursue damage claims against the manufacturers
in state court.
29
Texas peanut farmers argued that during the 2000 growing
season the fluorinated diclosulam herbicide, called Strongarm,
severely damaged their crops. In their efforts to create
a Class Action suit, the farmers lost their case in two
courts. They then appealed to the U.S. Supreme Court.
According
to the Associated Press:
The
US Supreme Court ruling "reinstates the farmers'
claim that Dow essentially failed to warn of possible
risks. A lower court had dismissed the claims, reasoning
that federal law barred states from imposing labeling
requirements on pesticides and herbicides other than those
set by the Environmental Protection Agency. But in an
opinion by Justice John Paul Stevens, the court ordered
the New Orleans-based 5th U.S. Circuit Court of Appeals
to take a second look at the case."
Dow
AgroSciences, a 100%-owned subsidiary of Dow Chemical, makes
diclosulam.
EPA
approved its use in
March
2000 to allow its use for that year's growing season.
EPA approved the label for diclosulam for
use in all areas where peanuts are grown. However,
Texas soils used for peanut farming have a high pH and diclosulam
should not be used in soils of 7.0 pH or greater. The label
EPA approved in 2000 did not warn the Texas farmers and
this led to substantial losses and the basis for their Class
Action suit.
In its
decision on
April 27, the U.S. Supreme Court stated:
According
to petitioners—whose version of the facts we assume
to be true at this stage—Dow knew, or should have
known, that Strongarm would stunt the growth of peanuts
in soils with pH levels of 7.0 or
greater. Nevertheless, Strongarm’s label
stated, “Use of Strongarm is recommended in all
areas where peanuts are grown,” and Dow’s
agents made equivalent representations in their sales
pitches to petitioners. When petitioners applied Strongarm
on their farms—whose soils have pH levels of 7.2
or higher, as is typical in western Texas—the pesticide
severely damaged their peanut crops while failing to control
the growth of weeds...
Dow
reregistered its Strongarm label with EPA prior to the
2001 growing season. EPA approved a “supplemental”
label that was for “[d]istribution and [u]se [o]nly
in the states of New Mexico, Oklahoma and Texas,”
the three States in which peanut farmers experienced crop
damage. This new label contained the following warning:
“Do not apply Strongarm to soils with a pH of 7.2
or greater.”
According
to the petitioners brief
of December 29, 2004: "some
petitioners did not use Strongarm in certain of their fields,
where they experienced record crop production."
Strongarm
did kill some of the Texans’ weeds, but the
farmers say it also stunted their plants’ growth
and led crop productivity to plummet. The farmers’
losses were estimated to be in the "multiple millions
of dollars," according to Kimberly Keller, an attorney
for the farmers. When used in the alkaline soils
of western Texas, the farmers discovered, Strongarm damages
peanut roots, a consequence that is now indicated on the
Strongarm label...
Ref: On
the Docket: Bates, Dennis, et al. v. Dow Agrosciences
LLC; by Eric P. Martin, Medill News Service
According
to an April 28, 2005, article in the New
York Times:
The
7-to-2 decision was one of the court's most significant
rulings on the pre-emptive effect of federal statutes.
In unusually pointed terms, the majority rejected the
Bush administration's view that
lawsuits claiming manufacturers negligently designed,
tested or manufactured their products are pre-empted by
the Federal Insecticide, Fungicide and Rodenticide Act
[FIFRA)], the federal law that governs the registration
and labeling of these products...
The
appeal has been closely watched for signs of the court's
evolving approach to pre-emption.
In general, a broad doctrine of pre-emption favors business
by keeping tort cases out of state court and avoiding
the need to satisfy 50 separate legal systems.
Since
[FIFRA] provides no right for individuals to sue in federal
court, a finding of pre-emption would have meant that
consumers would have no opportunity at all to sue manufacturers.
Arthur
H. Bryant, executive director of Trial Lawyers for Public
Justice, a public-interest law firm representing consumers,
said the decision was "an important
and striking development" in light of the general
trend in legislatures and courts toward curbing access
to the tort system.
...
the court ordered the Fifth Circuit to give further consideration
to whether the claims for fraud and "failure to warn"
could go forward or were pre-empted.
Justice
Stevens said the administration's argument that [FIFRA]
broadly required pre-emption "is particularly dubious
given that just five years ago the United States advocated
the interpretation that we adopt today."