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Kuiper v. American Cyanamid Co.

ELR Citation: 26 ELR 20931
Nos. No. 93-C-566, 913 F. Supp. 1236/(E.D. Wis., 02/15/1996)

The court holds that §24(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts farmers' state-law claims for damages to their corn crop against an herbicide manufacturer and dealer for negligent misrepresentation and deceptive advertising. The court first notes that the U.S. Supreme Court's reasoning in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), is inapplicable to this case. FIFRA's preemption language is broader than the language of the statute at issue in Cipollone and clearly precludes any state labeling or packaging requirements. The court also notes that Congress obviously intended to make the content and accuracy of pesticide labels a matter for exclusive federal jurisdiction. The court further notes that when a FIFRA-regulated product's advertising or promotional materials form the basis of a state-law claim, the preemption analysis should focus on whether the language at issue is substantially different from the representations made in the product's label or packaging. In this case, the manufacturer's representations to the farmers were the same as those contained in the herbicide's label. Finally, the court holds that even if FIFRA did not preempt the claims, Wisconsin's three-year statute of limitations would bar the farmers' statutory claim for fraudulent advertising. Applying Wisconsin's discovery rule, the court concludes that the claim accrued more than three years before the farmers discovered or should have discovered that the manufacturer's conduct may have caused their injury. The court rejects the farmers' argument that the claim accrued when another suit uncovered internal documents proving the manufacturer knew about the herbicide's carryover effect.

Counsel for Plaintiffs
Robert H. Bichler
Hostak, Henzl & Bichler
840 Lake Ave., Racine WI 53403
(414) 632-7541

Counsel for Defendant
Winthrop A. Rockwell
Faegre & Benson
2200 Norwest Ctr.
90 S. 7th St., Minneapolis MN 55402
(612) 336-3000