Federal Court Dismisses Blueberry Growers' Claims Based on Federal Preemption

In one of the first federal court cases to address the enforcement of federal preemption of common law claims under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) since the U.S. Supreme Court's 2005 ruling on this topic in Bates v. Dow AgroSciences, LLC, the U. S. District Court for the District of New Jersey dismissed the final remaining pieces in a decade-long suit by blueberry growers against Syngenta Crop Protection, Inc., Indian Brand Farms, Inc. v. Novartis Crop Prot., Inc. The District Court's October 10, 2008, order was the last in a series of decisions rejecting the claims of the blueberry growers after the matter was remanded from the U.S. Court of Appeals for the Third Circuit. Following instructions from the Third Circuit, the District Court found that significant portions of the growers' claims were preempted under the Supreme Court's reasoning in Bates.

In Bates, the Supreme Court narrowed the interpretation of federal preemption under FIFRA, finding that preemption applied only to state-law "requirements for labeling or packaging" and prohibited states from imposing requirements that were "in addition to or different from those required under [FIFRA]." The Supreme Court said explicitly that certain common law claims were not preempted by FIFRA—but the decision about whether any given claim was preempted should be based on a court's "examination of the common-law duty at issue" rather than "speculation as to whether a jury verdict will prompt the manufacturer to take any particular action," such as changing the product's label or packaging. Whether federal preemption under FIFRA applies, the Supreme Court essentially said, depends on the facts of the case.

Growers Claim Failure to Warn

Indian Brand Farms arose when a group of New Jersey blueberry growers claimed that the Syngenta (then Novartis Crop Protection) pesticide Diazinon AG600 WBC had damaged their blueberry plants when the farmers combined Diazinon AG600 with other companies' fungicide products in the same application. Syngenta did not recommend the "tank mix" of Diazinon AG600 and the other products.

The District Court ruled that when Diazinon AG600 was used alone on blueberries—as recommended on the product label—there was no evidence of any design defect. The court also found that no plaintiff had relied on any oral representations by Syngenta about the product (oral statements arguably would not have been preempted after Bates), nor had any plaintiff seen (or relied on) any written materials other than the label on the product packaging. Because the growers' failure-to-warn claims were premised so directly on the label, the district court held, they were preempted by FIFRA.

Court Enforces EPA Decision

By focusing on the reality that the blueberry growers' case rested on after-the-fact observations about the Syngenta product brochure rather than any oral or written statements that the growers had actually relied upon in choosing to apply Diazinon AG600 in a tank mix, Syngenta was able to defeat the growers' claims. Further, the District Court was unwilling to stretch New Jersey product liability law so far as to require pesticide manufacturers to test every foreseen product combination of pesticides, fungicides and herbicides on every authorized crop for every environment and growing practice. Instead, the court enforced a prior decision by the Environmental Protection Agency to put the burden on an applicator choosing to apply an off-label tank mix to first perform a small field test. The EPA had also said that farmers use non-recommended combinations at their own risk.

Earlier in this case, in August 2006, the Third Circuit had overturned a 2003 ruling by the New Jersey District Court that FIFRA preempted a broader set of the blueberry growers' claims. The Third Circuit remanded the case back to the District of New Jersey with particular instructions in light of Bates.

Application of Federal Preemption Under FIFRA

In remanding Indian Brand Farms, the Third Circuit had directed the District Court to determine whether the plaintiffs' failure-to-warn, negligent misrepresentation/fraud, and state consumer fraud claims were preempted by FIFRA under the tests outlined by the Supreme Court in Bates. The District Court addressed the question of whether the Diazinon AG600 brochure and other written materials that allegedly misrepresented the product's efficacy and appropriate usage constituted "labeling," and thus created a preemption problem under FIFRA. The court found that the product brochure could constitute FIFRA labeling because it "accompanied" the product, but it did not matter because Syngenta had effectively proved that the plaintiffs had never even seen the brochure before purchasing and using the product.

Applicators Assume Risk in Tank Mixing

In Indian Brand Farms, blueberry growers also brought a strict products liability claim, asserting that Diazinon AG600 was unreasonably dangerous because it had a latent defect—in that it could not be safely applied in a mixture with fungicides on the market. Likewise, the plaintiffs' negligent testing claim alleged that Syngenta had a duty to test its product and warn farmers about all reasonably foreseeable uses, including use of the Syngenta product in a non-recommended "tank mix" with other companies' products.

The District Court rejected the growers' "reasonably foreseeable use" argument, finding that other formulations of Diazinon could be successfully mixed with fungicide products for use on blueberries and that the blueberry growers had merely "selected the wrong product for an off-label combination with another product on a particular plant." The court emphasized that the EPA permits applicators to use tank mixes only at their own risk where, as with Diazinon AG600, the pesticide label is silent on the matter of tank-mixing. The EPA does not, however, require companies to test and warn about pesticide product combinations in an application tank if such combinations are not recommended. Because Syngenta had not recommended that Diazinon AG600 and the other products be combined, the court found, the growers were seeking to impose liability for a label statement that was different from or in addition to that required by the FIFRA regulations.

The New Jersey District Court concluded in Indian Brand Farms that "given the multiple, even if foreseen, uses to which Diazinon AG600 could have been put to by its ultimate end-users, the Court cannot find it practical, feasible, and reasonable, as a matter of law, to require the Defendant to have tested its product in combination with every other fungicide for use on all plants."

Court Finds No Breach of Express Warranty

Finally, the District Court held that the only basis for the growers' express warranty claim was a statement on the product label. While, after Bates, such express warranty claims based on label statements are likely not preempted by FIFRA, the court enforced the disclaimer of warranty and limitation of liability (limiting the growers' recovery to the price of the product). The court further held there had not been a breach of the express warranty because Diazinon AG600 could be safely applied to blueberries as a stand-alone product.