ELR Citation: ELR 21612
No(s). 92-2273-GTV (D. Kan. Jun 8, 1993)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state-law claims that an insecticide's manufacturer and distributor failed to warn adequately of an aerosol insecticide's known potential to cause asthma where the manufacturer had complied with FIFRA labeling requirements. The court holds that pursuant to Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 23 ELR 20478 (10th Cir. 1993), state-law causes of action for failure to warn arising under either state statutes or common law are expressly preempted by FIFRA §24(b). The court holds that the insecticide purchaser failed to allege sufficiently that the insecticide packaging violated FIFRA requirements. It is, in fact, undisputed that the warnings and labels satisfied FIFRA requirements. The court declines to rule on whether FIFRA preempts state-law claims where strict liability is concerned, because the purchaser failed to allege any claims relating to strict liability. The court denies the insecticide's manufacturer and distributor's motion for sanctions because the purchaser's opposition to the motion for summary judgment was not legally frivolous given the state of the law on this issue.

Counsel for Plaintiff
Blaise R. Plummer
Carson & Fields
302 Brotherhood Bldg., Kansas City KS 66210
(913) 371-2314

Counsel for Defendants
E. Wayne Taff
Sherman, Taff & Bangert
4707 College Blvd., Ste. 207, Leawood KS 66211
(913) 451-0022
Reginald J. Harrington
Sherman, Taff & Bangert
City Ctr. Sq., 1100 Main St., 29th Fl., P.O. Box 26530, Kansas City MO 64196
(816) 471-6900