Washington Appeals Court Holding Might Save The Raspberries

Washington Appeals Court Holding Might Save The Raspberries

 

A recent Washington case called into question FIFRA and preemption of state express warranty claims.  On appeal, the court held state express warranty claims are not preempted by FIFRA.[i]   The decision cited a U.S. Supreme Court ruling in Bates v. Dow Agrisciences[ii] and the strong state policy against application broadly of the supremacy clause in the context of states’ regulatory authority related to the health and safety of its citizens.

 

The Underlying Case

In 2016, Kissan Berry Farm[iii], along with four other farms (“Farms”) sued Syngenta Crop Protection LLC (Syngenta) and Whatcom Farmers Coop (WFC) for alleged damages caused to their raspberry crop after using herbicide, Callisto, manufactured by Syngenta.  A trusted representative of WFC, who was familiar with the farmer’s crops and equipment, and frequently advised the farmers about best practices, recommended the use of Callisto for weed control on their farms.

Callisto’s labeling included several disclaimers and warranties, was approved by the EPA, and provided detailed descriptions of the products uses and dangers.  The “Directions for Use” included directions  specific to red raspberries.  The Farms bought Callisto from a WFC representative who recommended an application of two fluid ounces per acre, which was consistent with product guide’s instructions.  Approximately two weeks after the application, the raspberry plants began to die.  The WFC representative suspected Callisto when asked to assess the cause of the damage by the Farms.  Syngenta subsequently visited the Farms and confirmed Callisto was the likely cause.  The Farms replanted their fields; however, the lingering effects of Callisto on their land not only reduced their crop yield for that year but for several years after, causing the Farms to accrue varying degrees of costs.

 

Lack of Warnings

Callisto came with a 31-page booklet with several disclaimers and warnings.  However, it lacked a warning that, if applied to control weeds in areas where raspberry plants were grown, it could cause harm to the plants.  The express warranty language and product guide stated that it could be applied “as a pre-bloom post-directed spray in…red raspberry.”[iv]  The Farms contended based on the printed representations in the express warranty language, application to raspberries when considered together, constituted an express warranty by Syngenta:  if the application and directions were properly followed, the Callisto would not harm the raspberry plants.

 

Issue Before the Appeals Court

Syngenta brought a summary judgment motion centered on the issue of whether the Farms’ “express warranty claims against Syngenta…are preempted by …FIFRA because to prevail, the [c]ourt would have to impose requirements in addition to or different from the requirements imposed by FIFRA and approved by the EPA.”[v]   Essentially, Syngenta was arguing under FIFRA, the pesticide’s approved label is the law, and states are prohibited from making additional labeling requirements by finding that express warranty claims apply.

 

Holding

The appeals court held FIFRA does not preempt state express warranty claims.  The court reasoned there is a strong presumption against finding preemption in an ambiguous case, and this presumption is stronger in matters involving state regulation regarding matters of health and safety, in which states have traditionally exercised sovereignty.

Syngenta argues FIFRA is a federal statute that regulates the use, sale, and labeling of pesticides and gives the EPA considerable enforcement authority.  A manufacturer who wishes to register their pesticide must submit a proposed label to the EPA for compliance with statutes and consideration on  the claims made about its use and whether it will cause unreasonable adverse effects on the environment.  The EPA will not approve the registration under FIFRA if the product is misbranded.

The court cited to Bates, where the United States Supreme Court addressed the FIFRA express preemption and concluded the rules that require manufacturers to design reasonably safe products, to use due care in conducting appropriate testing of their products, to market products free of manufacturing defects, and to honor their express warranties or other contractual commitments plainly, do not qualify as requirements for “labeling or packaging.”  It held FIFRA’s express preemption clause did not preempt the farmers’ defective design, defective manufacture, negligent testing, and breach of express warranty claims against an herbicide manufacturer.[vi]  Essentially, the Supreme Court found a pesticide manufacturer who is found liable for state law breach of express warranty claims is not then induced to change their federally registered pesticide label. Applying Bates to the instant case, the Appeals Court held that FIFRA did not preempt the farms express warranty claims.

 

Takeaway

Manufacturers cannot rely on their EPA-approved labeling.  These labels do not relieve them of liability.  Even if there is EPA-approved labeling, manufacturers cannot evade liability for express warranty claims for defective design, defective manufacture, and negligent testing in Washington.

 

 

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[i] The Federal Insecticide, Fungicide and Rodenticide Act

[ii] Bates v. Dow Agrisciences, 544 U.S. 431, 125 S. Ct. 1788, 161 L. Ed 2d 687 (2005)

[iii] Kissan Berry Farm v. Whatcom Farmers Coop, et. al. No. 82774-0-1 (Wash. Ct. Apps. Sept. 6, 2022)

[iv] Id. at ¶7.

[v][v] Id. at ¶12.

[vi] Bates, supra note ii, at 444.