Etcheverry v. Tri-Ag Service, Inc.

No. S072524 (993 P.2d 366, 50 ERC 1188) (Cal. March 2, 2000)

ELR Digest

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a farmer's state-law failure-to-warn claims against the manufacturer of two pesticides that, when mixed together, damaged the farmer's crops. Following the lead of the majority of courts that have considered this question, the trial court concluded that the farmer's claims were preempted by FIFRA. An appellate court, however, reversed the trial court based on flaws it found in the majority of courts' opinions.

The court first holds that in order for the farmer's failure-to-warn claims to succeed in the wake of Cippollone v. Liggett Group, Inc., 505 U.S. 504 (1992), which held that the Public Health Cigarette Smoking Act preempted state-law failure-to-warn claims, FIFRA's preemption language must be less sweeping than the cigarette act's language. Yet there is no significant difference between the provisions. The court then holds that contrary to the appellate court's holding, the weight of authority has analyzed FIFRA's preemption provision in light of Cippollone. The court further holds that appellate court's reliance on a pre-Cippollone case is misplaced because it has been rejected by the federal courts. The court also holds that Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), does not undermine the conclusion that FIFRA preempts state failure-to-warn claims. Medtronic addressed the Medical Device Amendments of 1976 (MDA), which allows the federal Food and Drug Administration to exempt state regulations from the MDA's preemptive effect. Congress did not give the U.S. Environmental Protection Agency (EPA) an analogous role in FIFRA implementation.

The court next holds that EPA's waiver of the submission of efficacy data, which arguably waives the preemption of state-law claims based on efficacy, is irrelevant because the farmer's claims are based on EPA-regulated phytotoxicity, not inefficacy. Even if phytotoxicity is included in efficacy, EPA requires and reviews efficacy data if problems arise after initial pesticide registration, and FIFRA sanctions the farmer's state, not lay juries, to regulate phytotoxicity and efficacy. Last, the court remands the case for the appellate court to determine whether the farmer's claims are based on inadequacies on the pesticides' labels.

A judge dissenting in part and concurring in part would hold that FIFRA preempts a state-law failure-to-warn claim based on alleged inadequacies in an EPA-approved pesticide label only if a finding of inadequacy would be inconsistent with FIFRA. A dissenting judge would hold that FIFRA preempts no state-law tort actions asserting failure-to-warn claims predicated on alleged inadequacies in EPA-approved pesticide labels.

The full text of this opinion is available from ELR (44 pp., ELR Order No. L-188).

Counsel for Plaintiffs
Robert Mehlhaff
Souza, Coats, McInnis, Mehlhaff & Hay
P.O. Box 1129, Tracy CA 95378
(209) 835-3232

Counsel for Defendants
Bradley A. Post
Borton, Petrini & Conron
1104 12th St., Modesto CA 95345
(209) 576-1701

[30 ELR 20389]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]