Opposition Brief — Bates v. Dow Agrosciences LLC

Supreme Court brief2005

Ask Donna

What actually matters in this document.

Text

No. 03-388

IN THE

Supreme Court of the United States

DENNIS BATES; JIMMY BURSON; BENNY JUDAH, doing

business as CLEARWATER FARMS; TOMMY COLEMAN;

RICHARD COX; WAYNE DAVIS; NEIL FRIESSEN; JAKE

FORESE; THOMAS FUSTON; ARTHUR GALVAN, doing business

as G-5 PARTNERSHIP; GREG HUGHES; SANDRA and KARL

DON HUGHES, doing business as JH CATTLE CO.; RUDY

KLASSEN; RONNIE LOVE; KEVIN MATHIS; BRAD PALMER;

KIRK PARRISH, doing business as K-L FARMS; JERRY PARRISH;

JoEVELYN PATTERSON and DONALD GRUBEN; STACEY

PRICE; BENNY JUDAH, doing business as PROGRESSIVE

FARMS; MORRIS RUSHING, doing business as PEA-COT

FARMS; BILLY SHANNON, FLOYD STOKES; CRAIG WEST;

FRENCHIE LEE WHEELER,

Petitioners,

DOW AGROSCIENCES LLC,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CiRCUIT

—

BRIEF IN OPPOSITION

— —- —

-——-—-

DEAN T. BARNHARD JosePH R. ALBERTS

Counsel of Record Dow AcroSciences LLC

BarNeES & THORNBURG 9330 Zionsville Road

11 South Meridian Street Building 308-1B

Indianapolis, Indiana 46204 Indianapolis, Indiana 46268

(317) 236-1313 (317) 337-4837

Attorneys for Respondent

BEST AVAILABLE COPY =

———————

STATEMENT PURSUANT TO RULE 29.6

Dow AgroSciences LLC is a wholly owned subsidiary

of The Dow Chemical Company.

TABLE OF CONTENTS

II. Statement Of The Facts ...............

Reasons for Denying the Petition ................

Il.

The Particular Facts Of This Case Make It

An Exceedingly Poor Candidate For

i SA AE

A. Even If The Texas Supreme Court's

Interpretation Of FIFRA Preemption

Were Adopted Over The Fifth Circuit's

Interpretation, Petitioners’ Claims

Would Still Be Preempted Because The

“Exception To Preemption” Created In

Geye Does Not Apply To These Facts.

B. Petitioners’ Claims Are All Label-Based

Because Their Other Claims All Failed

As A Matter Of Texas State Law. .....

This Court Has Strongly Indicated, And

Nine Federal Circuits And The Courts Of

Twenty-Seven States Have Held, That FIFRA

Expressly Preempts All Claims That

Challenge A Product’s EPA-Accepted Label.

eer ee eee e ee eee eee e eee eee e eee eeeeeeeeeeee

ee ce

iit

Contents

The Text Of FIFRA § 136v(b) And Its

Legislative History Confirm Congress’

Preemptive Intent. ...............4+-

This Court Recognized § 136v(b)’s

Preemptive Effect In Mortier. .........

Petitioners Mischaracterize FIFRA‘s

Legislative History And Mortier. .....

This Court Has Indicated That Its

Enforcement Of The Self-Executing

Express Preemption Clause Of The 1969

Cigarette Act In Cipollone Drives The

FIFRA Preemption Analysis. .........

Petitioners Wildly Exaggerate Their

Argument That “FIFRA Has Pitted

Federal Judges Against State Judges.”

This Court Reinforced The Automatic

And Self-Executing Effect Of Express

Preemption Statutes In Medtronic. ....

Petitioners’ Argument That Common

Law Litigation Is The Only Mechanism

By Which Pesticide Efficacy Is

“Regulated” Is Irrelevant And Wrong.

Petitioners’ Focus On A _ 1978

Amendment To FIFRA Overlooks An

Important Holding In Cipollone And

FIFRA’s 1988 And 1996 Amendments.

Page

Conclusion

Contents

The United States Solicitor General And

The EPA Have Expressly Repudiated

The Prior Anti-Preemption Arguments

Made In Etcheverry. ........-....+++:

Petitioners Either Flatly Misstate The

Law Or Grossly Exaggerate Their

Arguments That A Conflict In Lower

Court Authority Exists Requiring

Resolution By This Court. ............

Petitioners misstate the law by

arguing that the D.C. Circuit's

obsolete and repudiated Ferebee

decision represents an inter-circuit

GREED ccccccccvcccccascrccense

Petitioners misstate the law by

arguing that a conflict has arisen

between the state and federal courts

in New York since this Court's

Medtronic decision. ..............

Petitioners cannot rely on the

Arkansas Supreme Court's obsolete

decision in Alter to support their

“conflict” argument. .............

Page

TABLE OF CITED AUTHORITIES

Cases: “ee

Ackerman v. Am. Cyanamid Co., 586 N.W.2d 208

CREED caccnseccenscdénccusdcisonsacsess 17, 20

Ackles v. Luttrell, 561 :<.W.2d 573 (lowa 1997) ..... 17

All-Pure Chem. Co. v. White, 896 P.2d 697 (Wash.

GOED acnsacsacscecccsusdcdeasdesceckecnccess 17

Am. Cyanamid Co. v. Geye, 79 S.W.3d 21 (Tex. 2002),

cert. denied, 123 S. Ct. 2637 (2003) .......... 4,9, 14, 26

Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420

SA, EEOE. Sacnduddeddcsoscesecenastendekesees 6

Anderson v. Dow AgroSciences LLC, 262 F. Supp. 2d

CC GH GED wc ccccccdcscccecacceses

Andrus v. AgrEvo USA Co., 178 F.3d 395 (5th Cir.

GEUUD decccegcucuecccsdcndvansnacoensesexndes 16, 20

Arkansas-Platte & Gulf P’ship v. VanWaters & Rogers,

Inc., 959 F.2d 158 (10th Cir. 1992), aff'd after

remand, 981 F.2d 1177 (10th Cir.), cert. denied sub

nom. Arkansas-Platte & Gulf P’ship v. Dow Chem.

Co, FED UE. GED GIT cc cccccccctcvcccccccce passim

Banks v. ICI Americas, Inc., 450 S.E.2d 671 (Ga. 1994)

PITTTTITTIT TTT TTT TT TTT ee 16

Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438 (2002)

WPUTTTTTTTTTTT TTT TTT TTT TTT TTT Te 12

Bice v. Leslie's Poolmart, Inc., 39 F.3d 887 (8th Cir.

GREED éccctndddaniddcecisncnsddedweeausaneuas 16

Cited Authorities

Page

Brown v. Chas. H. Lilly Co., 985 P.2d 846 (Or. Ct. App.

GENER Sbcencasedensecassnedssécenendsaasenese 17, 20

Chicago & North Western Transp. Co. v. Kalo Brick &

Saw Ga, GD US. FEE CIGGE) 2. nc cccccccccccsccs 5

Ciba-Geigy Corp. v. Alter, 834 S.W.2d 136 (Ark. 1992)

$OSRGRECONRE KROES SEESEEedebEsecndedeeeese 30

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)

CODES ROSES SOEECOES ES EK SCEKSeESeeEDeOSCeese passim

Clubine v. Am. Cyanamid Co., 534 N.W.2d 385 (lowa

SUNY 40b06scnnceeuenskteduecksseosunenccess< 17

Davidson v. Velsicol Chem. Corp., 834 P.2d 931 (Nev.

1992), cert. denied, 507 U.S. 1051 (1993) ......... 17

Didier v. Drexel Chem. Co., 938 P.2d 364 (Wash. Ct.

CE TESUD ccccesccncccncccssancescecvecsssce 20

Dillon v. Zeneca Corp., 42 P.3d 598 (Ariz. Ct. App.

EEE seknehisenhedecbededubctundeeectatneecs 17

DiPetrillo v. Dow Chem. Co., 729 A.2d 677 (R.1. 1999)

pecoencsesecoesonsesencesesceouccecoceseccs 17

Dow AgroSciences LLC v. Bates, 332 F.3d 323 (5th Cir.

EE S0encaesecsccedassetececcétveveseceses passim

Dow AgroSciences LLC v. Bates, 205 F. Supp. 2d 623

Ey SLED he Shedencnbceseceuésevdcscdcs 4

Dow AgroSciences LLC v. Bates, NO. CIV. A. 5:01-

CV-331-C, 2002 WL 1205133 (N.D. Tex. March 12,

SEEMED SS cnevedeccoccovencsesscucedevccccesces 4

eS ee

Cited Authorities

Page

Dow Chem. Co. v. Ebling, 753 N.E.2d 633 (Ind. 2001)

su cdddceSecbéeceuneeneussdddcececseeuesenene 16-17

Eide v. E.1. Du Pont de Nemours & Co., 542 N.W.2d

FED B.D. WGP) 2. ncccccccccccsccccvcsccescens 17

Ell v. S.E.T. Landscape Design, Inc., 729 N.Y.S.2d 515

(N.Y. App. Div. 2001) ........... cece eee eeees 29, 30

Etcheverry v. Tri-Ag Service, Inc., 993 P.2d 366 (Cal.

TD cc cncccccccccccccccccscccceccesucecses passim

Eyl v. Ciba-Geigy Corp., 650 N.W.2d 744 (Neb. 2002),

cert. denied, 123 S. Ct. 2646 (2003) ............-. 17, 20

Fe, ebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir.

BID ccvccccccccesccccevecccesccesevecsesess 28

Gade v. National Solid Wastes Mgmt. Ass‘n, 505 U.S.

BREED ccccccccccccccccccccesccccecevessoes 24

Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000)

petencceseseenceeneneascesswenessesceseueses 14

Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000)

pbuceoeccceeseceseuecocoseesonsstssestececees 17

Goforth v. Smith, 991 S.W.2d 579 (Ark. 1999) ...... 30

Goodwin v. Bacon, 896 P.2d 673 (Wash. 1995) ...... 17

Gorton v. Am. Cyanamid Co., 533 N.W.2d 746 (Wis.

1995), cert. denied, 516 U.S. 1067 (1996) ......... 17

vill

Cited Authorities

Page

Grenier v. Vt. Log Bldgs., Inc., 96 F.3d 559 (ist Cir.

SOUND S0Sbineeepeaseséuseueecsonteoseceessees 16, 20

Hart v. Bayer Corp., 199 F.3d 239 (5th Cir. 2000) ... 25

Hawkins v. Leslie’s Pool Mart, Inc., 184 F.3d 244

EE Suinecdcunutcdendeusacetcvencusns 19

Hawkins v. Leslie's Poolmart, 965 F. Supp. 566 (D. NJ.

1997), aff'd in relevant part, 184 F.3d 244 (3d Cir.

SEUU Adda paubanudeceuseeiunubéeseraieecans 16, 20

Hochberg v. Zoecon Corp., 657 N.E.2d 1263 (Mass.

PEON Sneeeedesccecccouseusceusdeuseecceacess 17

Hopkins v. Am. Cyanamid Co., 666 So. 2d 615 (La.

GEE Shawdsuddussuuddbeusanensidnatuenaasade 17

Hopkins v. Ciba-Geigy Corp.,.432 S.E.2d 142 (N.C. Ct.

HY SPUN decsectcnceceesnessencueessececees 17

Hue v. Farmboy Spray Co., Inc., 896 P.2d 682 (Wash.

EOE Nenctsuagreccceusuccsensisesesececes 10, 17, 20

Hughes v. Tennessee Seeds of Brownsville, Inc., 970

S.W.2d 471 (Tenn. Ct. App. 1997) ............. 17

ISK Biotech Corp. v. Douberly, 640 So. 2d 85 (Fla. Dist.

SE MED ceacncdeuenceuncadiecckencesesas 17

Jenkins v. Amchem Prods., Inc., 886 P.2d 869 (Kan.

1994), cert. denied, 516 U.S. 820 (1995) .......... 17, 20

Kawamata Farms, Inc. v. United Agri Prods., 948 P.2d

UTNE G-a.dudcucuduwetenedceudwcdeos 16, 17

SE Do Ee eee 8

Cited Authorities

Page

King v. E.1. DuPont de Nemours & Co., 996 F.2d 1346

(Rat Cie. B98B) ncn cccccccccssccscvcccvens 8, 14, 15, 16

Koch v. Shell Oil Co., 173 F.R.D. 288 (D. Kan. 1997)

SeSSOC Ree ceteeeSEceuEDECsSesssenseescoeeuens 20

Kuiper v. Am. Cyanamid Co., 131 F.3d 656 (7th Cir.

1997), cert. denied, 523 U.S. 1137 (1998) ......... 16

Kuiper v. Am. Cyanamid Co., 960 F. Supp. 1378 (E.D.

Wis. 1997), aff'd, 131 F.3d 656 (7th Cir. 1997), cert.

denied, 523 U.S. 1137 (1998) .......... eee e ees 20

Lescs v. William R. Hughes, Inc., No. 97-2278, 168 F.3d

482, 1999 WL 12913 (4th Cir. Jan. 14, 1999), cert.

denied, 528 U.S. 1119 (2000) ........ 6... cece nee 16, 19

Lewis v. Am. Cyanamid Co., 715 A.2d 967 (N.J. 1998)

pbeeRpensenenensseensosenenesesuseseeesscess 20

Lewis v. Am. Cyanamid Co., 682 A.2d 724 (N.J. Super.

Ct. App. Div. 1996), aff'd in relevant part, 715 A.2d

O67 (IN.J. 1DBB) 2. ccvvvvcscccccccccccccccceens 17

Lowe’s Home Centers, Inc. v. Olin Corp., 313 F.3d 1307 :

(11th Cir. 2002), reh'g and reh’g en banc denied, 61

Fed. Appx. 673 (11th Cir. 2003) (table) ......... 16

Lowe v. Sporicidin Int'l, 47 F.3d 124 (4th Cir.1995) ... 16

Lucas v. Bio-Lab, Inc., 108 F. Supp. 2d 518 (E.D. Va.

BED cccccescvccccccesesescenecesesesecesees 20

M & H Enterprises v. Tri-State Delta Chems., Inc., 984

S.W.2d 175 (Mo. Ct. App. 1998) ......... 6660s. 17

Cited Authorities

Page

MacDonald v. Monsanto Co., 27 F.3d 1021 (5th Cir.

1994), aff d after remand, 68 F.3d 470 (5th Cir. 1995)

NN 0000400564600 kGdadhs408cekbekes Cees 8, 15, 16

Mann v. H.W. Anderson Prods., Inc., 676 N.Y.S.2d 658

ee ML Es OI 6060. Kae bdcedvecccsasacs 29

Medtronic, Inc. v. Lohr, 518 U.S. 470 a er passim

Moody v. Chevron Chem. Co., 505 N.W.2d 900 (Mich.

SO OEE 8 oheKbdeadeseckiuscdedducedeceess 17

Morales v. Trans World Airlines, Inc., 504 U.S. 374

SEN. 660 bN0dudiddandd nhdhenenehaeedéasenas 18, 21

Nat'l Bank of Commerce (Arnold) v. Dow Chem. Co.,

165 F.3d 602 (8th Cir. 1999) ................... 16

Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199 (9th

Se Keicdbuceenecuesedtncieseus 14, 16, 19, 21-22

Netland v. Hess & Clark, Inc., 284 F.3d 895 (8th Cir.),

cert. denied, 123 S. Ct. 415 (2002) ............... 16, 19

: P ,

Oliver v. Reckitt & Colman, Inc., 12 F. Supp. 2d 1287

ee OU BOOED bdasdeenecccecuecs - stbheswens 20

Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991),

affd after remand, 985 F.2d 516 (11th Cir.), cert.

denied sub nom. Papas v. Zoecon Corp., 510 U.S. 913

SE) hones akedenbilniedeesddecedeeds 7,8, 14, 15, 16

Pfeifer v. E.1. Du Pont de Nemours & Co., 606 N.W.2d

PT EEE OS eenashantedecanncecssccieces 17, 20

ee ee

aici cast MT oreo ee 2 ON an

Cited Authorities

Page

Quest Chem. Corp. v. Elam, 898 S.W.2d 819 (Tex. 1995)

iedebeeddesdededenseekendenceaeueesenteeses 17

Rodriguez v. Am. Cyanamid Co., Inc., No. 96-15752,

116 F.3d 485, 1997 WL 306430 (9th Cir. June 5,

WO) oc ccccccccccccvccscecccsscccesscccccess 16

Romah v. Hygienic Sanitation Co., 705 A.2d 841 (Pa.

Super. Ct. 1997), aff'd without opinion, 737 A.2d

249 (Pa. 1999) 20... cece cece e eee eee e rene eeees 17, 20

Ruiz-Guzman v. Amvac Chem. Corp., No. 98-35088,

243 F.3d 549, 2000 WL 1763212 (9th Cir. Nov. 28,

WDD) ov cccccccccccccsccsevescecccvcccccceses 16

Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993)

9,15, 16

Schuver v. E.I. Du Pont de Nemours & Co., 546 N.W.2d

610 (lowa 1996) ...... cece eee eee eee tees 17

Sherman v. Claire Mfg. Co., 657 N.Y.S.2d 453 (N.Y.

App. Div.), appeal dismissed in part, denied in part,

686 N.E.2d 1361 (N.Y. 1997) ....... 0s eee neers 20, 29

Sleath v. W. Mont Home Health Servs., Inc., 16 P.3d

1042 (Mont. 2000), cert. denied sub nom. Dow

AgroSciences LLC v. Sleath, 534 U.S. 814 (2001) .. 17, 20

Smith v. Louisville Ladder Corp., 237 F.3d 515 (5th

Cir.), reh’g en banc denied, 250 F.3d 745 (Sth Cir.

I <o-.. eusuchantenrmeninniaa aa taae meee "

Taylor AG Indus. v. Pure-Gro, 54 F.3d 555 (9th Cir.

BOTS) on ccccccccccccccccvcccccccccccccoces 14, 15, 16

Cited Authorities

Page

Traube v. Freund, 775 N.E.2d 212 (Ill. App. Ct.), appeal

denied, 787 N.E.2d 170 (Ill. 2002) ............... 17 _

Tyler v. Dow Chem. Co., Inc., 683 N.Y.S.2d 619 (N.Y.

I ED 80656 dcbsecdcecsddccdnneddeus 29, 30

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d

328 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999)

$0 ON d0b0 UH 4sbese decntesaeebinbecdévassévends 6

United States v. Locke, 529 U.S. 89 (2000) .......... 12, 18

Walker v. Am. Cyanamid Co., 948 P.2d 1123 (Idaho

SEUD: Scndddesdenacasdsnsiesevindcdanbinsecns 17

Warner v. American Flouride Corp., 616 N.Y.S.2d 534

ee I BOE Keb cdeccsccnsadacbnenccs 17

Welchert v. Am. Cyanamid, Inc., 59 F.3d 69 (8th Cir.

POU Ssd nde cdndwedscenudeucenceddeadedunes's 16

Williams v. Dow Chem. Co., 255 F. Supp. 2d 219

Ss MED Sec uddindinhdvadedienenecéunxe 29-30

Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597

ED 60S dnseredidecdsacudsisdducnncneesusn passim

Worm v. Am. Cyanamid Co., 5 F.3d 744 (4th Cir. 1993)

§08460d0b SedNeNEEeE eseeedeseetaectenestaens 15

Wright v. Am. Cyanamid Co., 599 N.W.2d 668 (Iowa

PED. SnLNONGVAKEUEA den easaUEdeesucedseneents 17

Pe eS a ee

xiii

Cited Authorities

Page

Statutes:

7 U.S.C. §§ 136-136y ... 2... cece eee eee neers 2

7 U.S.C. § 136a(c)(5) «0... cece cece cee cece eeeeees 24

7 U.S.C. § 136a(c)(7)(A) «0... eee cree eee eees 2

7 U.S.C. § 136a(c)(10) 2.2... eee eee eee eens 2

7 U.S.C. § 136d(a)(2) . 2.2... eee cee cece eee e eens 22

7US.C.§ 1326p ...... cc eee r cece cece eeereeeecees 2

7 US.C. § 136v(a) 2.0... eee cee eee eee e ee eeeee passim

7 U.S.C. § 136V(b) «0... eee eee e eee ees passim

15 U.S.C. § 1334(b) .. 2... cece cee cece ee eeeees 12

Ata. Cope. § 2-27-5.1 (2003) ....... seer eee eee 8

Ata. Cope. § 2-27-2(24)(b)(4) (2003) ......-.---++- 22

Ark. Cope ANN. § 2-16-402 (2003) ..........++555 23

Ariz. Rev. Stat. § 3-337 (2003) .......--- eee e eee 8

Ariz. Rev. Stat. § 3-341(17)(b)(vi) (Michie 2003)... 23

Cat. Foop & Acric. Cope § 11501.1 (Deering 2003) ,

Coro. Rev. Stat. § 35-9-105 (2003) .......00- 22ers 8

x1v

Cited Authorities

Page

Coto. Rev. Strat. § 35-9-107(1)(e) (2003) ........... 23

Conn. GEN. Start. § 22a-49 ee 23

Fia. Stat. ch. 482.242 (2003) ............ 0. ceca eee 8

Fia. Stat. ch. 487.025(g) (2003) ...........0.0000, 23

Fia. Stat. ch. 487.041 (2003) .......0. 00... e cece, 23

Ga. Cope ANN. § 2-7-113.1 (2002) ............005. 8

IDAHO Cope § 22-3426 (2003) ........... cee een, : 8

415 Itt. Comp. Stat. 60/3 (2003) ...............05. 8

IND. Cope ANN. § 15-3-3.5-2(19)(b)(vii) (Michie 2003) -

Iowa Cove § 206.34 (2003) ............. ccc cee 8

Kan. Stat. ANN. § 2-2480 ee 8

Ky. Rev. Stat. ANN. § 217B.270 (Michie ae 8

La. Rev. Stat. ANN. § 3:3224 (Michie 2003) ........ 8

Mb. Cope Ann., Aric. § 5-101(q)(8) ae 23

Micu. Comp. Laws § 324.8328 (2003) .............. 8

Minn. Star. § 18B.02 (2002) EARN Henn ser sszniensns 8

Miss. Cope ANN. § 69-23-9 (2003) ................. 8

Ph ll Sm eh Pe ee ee ee eee oe

Cited Authorities

Miss. Cope ANN. § 69-23-3(bb)(viii) (2003) ........

Mo. Rev. Stat. § 281.005 (2003) .......-. eee eeeee

Mont. Cope ANN. § 80-8-102(25)(b)(vii) (2002) ....

Nes. Rev. Stat. § 2-2625 (2002) ......-.--- eee eeeee

Nev. Rev. Stat. ANN. § 586.230 (Michie 2003) ......

Nev. Rev. Stat. ANN. § 586.180(2)(g) (Michie 2003)

N.M. Stat. ANN. § 76-4-9.1 (Michie 2003) .........

N.Y. Envtt. Conserv. Law § 33-0303 (Consol. 2003)

MGB) .cccvccccccccccgcvcsccvcescvescccvesess

N.C. Gen. Stat. § 143-465 (2003) .... 2... ee eee eres

N.C. Gen. Stat. § 143-435 (2003) .....--. ee eee eee

N.C. Gen. Stat. § 143-460(23)(b)(7) (2003) ......--

N.D. Cent. Cope § 4-35-06.1 (2003) ......-..-eee

N.D. Cent. Cove § 19-18-2(19)(b)(10) (2003) .......

Onto Rev. Cope ANN. § 921.23(C) (Anderson 2003)

“ene eneeneveee

eaeeeoe eee eeeeeuanseeseseaeseeeeeeceer ee

“ee

8, 23

; xvu

xvi |

. Cited Authorities

Cited Authorities ‘ Page

Page |

. | Va. Cove ANN. § 3.1-249.39 (Michie 2003) ......... 23

OKLA. Star. tit. 2, § 3-85 (2002) ...............008. 8

; Wasn. Rev. Cove § 15.58.130(2)(d)(iv) (2003) ...... 24

OKLA. Stat. tit. 2, § 3-81(28)(b)(7) (2003) .......... 23

| W.Va. Cope § 19-16A-2 (2003) .......6- cece eee u

Or. Rev. Stat. § 634.057 (2001) ...............000. 8

W. Va. Cope § 19.16A-3(27)(H) (2003) ..........+-- 24

3 Pa. Cons. Stat. § 111.57 (2003) ..............05. 8 ‘

Wis. Stat. § 94.701 (2002) ...... cece cece eee eens 9

R.I. Gen. Laws § 23-25-3 (2002) .............0005. 23

: Other Authority:

S.C. Cope ANN. § 46-13-30 (Law. Co-op. 2002) ..... 8

Pesticipe REGULATION Notice 97-3 (Sept. 4, 1997) ... 2

S.D. Copiriep Laws § 38-20A-4 (Michie 2003) ...... 23

H.R. Rep. No. 92-511 (1971)... 2... c cece eee eee eee 7

TENN. Cope ANN. § 43-8-102(10)(G) (2003) ......... 23

H.R. 4152, 92d Cong. (1971) «2.6... ce eee reece eee 10

TENN. CODE ANN. § 43-8-104(b) (2003) ............ 23 ;

1 H.R. 10729, 92d Cong. § 24(b) (1971) .......-+-- 8, 10,11

TENN. Cope ANN. § 43-8-114 (2003) ............... 9

H.R. 10729, 92d Cong. § 23(b) (1972) .......-+-- 8, 10,11

Tex. Acric. Cope ANN. §§ 76.001-76.203 (Vernon

SE ede aHe Gade whe phueddedasisecnsccteccee 22 S. Rep. No. 92-838, pt. 1 (1972), reprinted in 1972

USC.C.A.N. FIRS .nccccccccccccccccccccccees 7-8

Tex. Acric. Cope ANN. § 76-101 (Vernon 2003) ..... 9

Federal Pesticide Control Act of 1971: Hearings Before

Tex. Acric. Cope Ann. § 76.046(c)(3) (Vernon 2003) the House Committee on Agriculture, 92d Cong. 8,

ane Boke he ERLE ee an 22, 23 DE Sciecececascccsesescoetscsceccese «6

Urtan Cope Ann. § 4-14-3 (2003) ................, 23 1965 Federal Cigarette Labeling and Advertising

Ded Deccunbagehesséegeeseeoeceecesce 12, 13, 14, 15

Vt. Stat. ANN. tit. 6, § 917 (2003) ................. 9

Public Health Cigarette Smoking Act of 1969 .....

Vr. Stat. ANN. tit. 6, § 911(15)(B)(vii) (2003) ....... es cc eceesenenenccesccccesccs 12, 13, 14, 18

Va. Cope ANN. § 3.1-249.27 (Michie 2003) ......... 23

xvilt

Cited Authorities

Page

Medical Device Amendments of 1976 ............ 18

Food Quality Protection Act of 1996 ............. 25

GF FUND TG v dccccccccccscccctnccces 13

40 C.F.R. § 158.640(b)(1) (2003) .................. 21

GIG F Ee FUR TIP GD oc cccccccccccccccscccces 22

Press Release, Environmental Protection Agency

(Oct. 6, 2003) (quoted in part in Mary Beth Polley,

EPA: FIFRA Preempts Labeling-Related Tort

Lawsuits, 31 Pesticipe & Toxic CHem. News 20 (Oct.

CGE 6006 00deueeadavesenusequsebasensuas 27

64 Fed. Reg. 9152 (Feb. 24, 1999) ................. 2

65 Fed. Reg. 12129 (March 8, 2000) ............... 2

Cat. Cope Recs. tit. 3, § 6186 (2003) .............. 23

Cat. Cope Recs. tit. 3, § 6192 (2003) .............. 23

FLa. ADMIN. Cope ANN. r. 5E-2.031 (2003) ......... 23

N.Y. Comp. Cones R. & Recs. tit. 6, § 326.14(h) (2003)

peevesecescoccnsuseneenessuceouciosentéauees 23

SP UU GEE concecocncedessauasuneesceedaucs 23

PU COG GGEED Scdnccccucedecsensaedecusecs 3

_— oo

me CaP Ct a el iS OO Ah Rey ti eB OE i ee

hi ele tee rdee mate

ee ee a on

xIx

Cited Authorities

Page

Brief for United States as Amicus Curiae, Am.

Cyanamid Co. v. Geye, 79 S.W.3d 21 (Tex. 2002),

cert. denied, 123 S. Ct. 2637 (2003) (No. 01-0008)

“ese eee

eecseeeeeeeeveev ee eevee eeeeeeeeeeeeee020

Brief for United States as Amicus Curiae, Wisconsin

Pub. Intervenor v. Mortier, 501 U.S. 597 (1991)

(No. 89-105) 2.2.6.2 c eee e eee eee e eee e eee eeeees | 26

ee — =

VANE LAME 0 ME ont Sd Seneca 1 ttre? “labia en. nee ee ee ee te ee ee

STATEMENT OF THE CASE

I. Introduction

Respondent Dow AgroSciences LLC (“Dow

AgroSciences”) respectfully requests that the Petition be

denied because, first, there is no legitimate, meaningful split

in authority over FIFRA preemption. Following Cipollone v.

Liggett Group, Inc., 505 U.S. 504 (1992), nine federal circuits,

and the supreme courts and/or intermediate appellate courts

of twenty-seven states, have all agreed that 7 U.S.C. § 136v(b)

expressly preempts common law challenges to EPA-accepted

pesticide product labels. In addition, one state supreme court

(Texas’) and one federal circuit (the Third) generally agree,

but hold that FIFRA preemption depends upon factually-

sensitive timing and intensity of EPA scrutiny of the data

underlying the challenged aspect of a particular pesticide’s

label or packaging. Only one state supreme court (Montana’s,

over a strong dissent by its now-Chief Justice) and only one

state’s intermediate appellate court (Oregon’s) have

disagreed.’

Second, Petitioners’ arguments for reversal here, relying

upon the regulation-dependent analysis accepted in Texas and

the Third Circuit, are ultimately futile. Such an exception to

preemption simply does not apply to the specific facts of this

case because Dow AgroSciences, in applying for the federal

registration of its Strongarm herbicide, submitted a massive

amount of efficacy and crop safety data to the EPA for its

consideration.

Third, the Montana and Oregon decisions do not create a

legitimate, meaningful conflict. Indeed, the decision by the

Montana court is immediately suspect because it is premised

entirely upon arguments offered in a widely-rejected and

otherwise-unsuccessful government amicus brief that the

United States Solicitor General has now expressly and

categorically repudiated in a recent amicus brief to this Court.

The decision by the Oregon court is equally suspect because it

wholly misinterprets this Court's decision in Medtronic, Inc. v.

1. The issue of FIFRA preemption has not reached the remaining two

regional federal circuits, the District of Columbia Circuit, or the appellate

courts of the remaining twenty-three states since Cipollone.

Lohr, 518 U.S. 470 (1996), reaching a conclusion con‘ ->dicted

by not less than twenty-two published FIFRA decisions directly

holding that Medtronic does not alter the FIFRA preemption

analysis.

Il. Statement Of The Facts

In 1992, Dow AgroSciences began the lengthy application

process for federal registration of its new diclosulam-based

herbicide, later named Strongarm. As required by the Federal

Insecticide, Fungicide and Rodenticide Act (“F IFRA”),7 U.S.C.

§§ 136-136y, and its implementing regulations, Dow

AgroSciences submitted massive amounts of product data to

the United States Environmental Protection Agency (“EPA”)

in support of its application.

Because Strongarm’s application for registration was

submitted under the 1996 amendments to FIFRA, specifically

7 U.S.C. § 136a(c)(10) (authorizing the Reduced Risk Initiative

implemented by the EPA through Pesticipe REGULATION Notice

97-3 (Sept. 4, 1997)), Dow AgroSciences submitted a

comprehensive body of data on Strongarm’s efficacy in

controlling broadleaf weeds in peanuts and its safety for that

use. The EPA's final rule authorizing registration of diclosulam,

Strongarm’s active ingredient, proves that the EPA required

and considered such data for Strongarm: “The petitioner has

proposed the following plantback restrictions ... 9 months

for... peanuts. . . due to phytotoxicity.” 65 Fed. Reg. 12129, 12133

(March 8, 2000) (emphasis added). The EPA’s consideration of

soil pH factors as influencing crop safety specifically is proven

by the EPA’s approval of this warning for Strongarm’s label:

Note: Environmental and soil factors can influence the

performance and selectivity of any herbicide treatment.

. . .factors such as pH. . . can contribute to reduced crop

tolerance to a soil-applied herbicide.

(italics original, emphasis added).

Strongarm’s fed_ral registration ultimately issued

on March 8, 2000, pursuant to 7 U.S.C. § 136a(c)(7)(A).?

2. The Texas Department of Agriculture had such great expectations

for the benefits of Strongarm’s use on Texas peanut crops that, prior to

Strongarm’s federal registration, it petitioned the EPA for an emergency

exemption under 7 U.S.C. § 136p to permit the use of Strongarm to treat up

to 184,000 acres of Texas peanuts. See 64 Fed. Reg. 9152 (Feb. 24, 1999).

Dow AgroSciences has sold Strongarm only with its EPA-

accepted label attached to the containers of the product.

Petitioners purchased Strongarm from their respective local

agricultural chemical suppliers and applied it to their year 2000

t crops.

Sen Peuniaaae misstate the facts when they argue that

“Strongarm . . . was the only herbicide applied to the farmers

crops in the 2000 growing season.” Pet. at 2. In fact, the great

majority of the Petitioners used at least one other herbicide,

and several of them used three or more different herbicides in

addition to Strongarm on their 2000 peanut crops. . .

Petitioners further misstate the facts by arguing i

iscovery indicated that Strongarm causes injury to peanu

an wy a with pH levels of 7.0 or greater, and that before

the herbicide’s release, Dow was aware of the harmful effect

of applying Strongarm to peanuts grown in the high pH-level

soils of Texas, New Mexico and Oklahoma.” Id. First, no

pre-trial discovery was undertaken in this case, the District

Court decided Dow AgroSciences’ motion for summary

judgment before discovery commenced.” Second, there is no

evidence in this record to support Petitioners’ accusation.

Due to extremes in weather, the year 2000 was a

challenging one for all West Texas agribusinesses, including ~

these Petitioners. Petitioners concluded, however, that

Strongarm was to blame for their disappointing crop yields

and threatened to sue Dow AgroSciences in multiple, separate

lawsuits to be filed in several different Texas county courts.

Rather than defend itself in such multiple state court

proceedings, Dow AgroSciences filed a declaratory judgment

action in the federal District Court most geographically

convenient to the Petitioners. One month later, Petitioners filed

suit against Dow AgroSciences in ten different Texas county

courts, joining non-diverse Texas defendants, exactly as they

had threatened to do. . a

The District Court denied Petitioners’ motion to dismiss

or to abstain from deciding Dow AgroSciences’ declaratory

3. The Petitioners did not move the District Court to delay its ruling

on Dow AgroSciences’ motion to permit them to take discovery pursuant

to Rule 56(f) of the Federal Rules of Civil Procedure.

judgment action. See Dow AgroSciences LLC v. Bates

A. 5:01-CV-331-C, 2002 WL 1205133 (N.D. Tex. SMasch 12:

2002).* The District Court then granted summary judgment

against Petitioners on their counterclaims, holding almost all

of them to be FIFRA-preempted, and the remainder of them

barred by the limitation of remedies provision on the

Strongarm label and its effective disclaimer of express and

implied warranties. 205 F. Supp. 2d 623. The Fifth Circuit

affirmed, but held that FIFRA preempted all of the Petitioners’

claims. 332 F.3d 323. Petitioners waived appellate review of

the District Court's holding on the limitation of remedies on

er label. 332 F.3d at 332 n.15.

Following the Fifth Circuit's affirmance, s

Petitioners resumed active prosecution of their pte yen

court actions. On October 14, 2003, however, the District Court

eer the Petitioners from further prosecution of their state

onttn ver “er

reat - toe Petitioners have appealed that injunction to

REASONS FOR DENYING THE PETITION

I. The Particular Facts Of This Case Make It An

ae Candidate For Review.

. Even e Texas Supreme Court's Interpretati

Of FIFRA Preemption Were Adopted Over The Fifth

Circuit s Interpretation, Petitioners’ Claims Wouid

eee Be Preempted Because The “Exception To

ee i

a Created In Geye Does Not Apply To

Petitioners are wrong to argue that review i

because their labol-salated clatans would ieee survived HRA

eras ep under the Texas Supreme Court's decision in Am

Cyanamid Co, v. Geye, 79 S.W.3d 21 (Tex. 2002), cert. denied,

3 S. Ct. 2637 (2003). The Texas court held in Geye that the

claims presented there were not FIFRA-preempted because

[t]he EPA did not evaluate whether the tank-mixed Pursuit-

Prowl combination had a toxic effect on peanut plants.”

Id. at 26. The Geye court held: “[T]he scope of FIFRA’s

preemption is dependent on what the EPA regulates, .. .”

4. Petitioners do not seek review of the Fifth Circui

the District Court did not abuse its discre tion in this —emcy holding that

fe)

Id. at 29. Contra Bates, 332 F.3d at 330 (“Nowhere in FIFRA’s

text is § 136v(b)’s express preemptive command .. . linked to

the interplay of EPA regulations.”). See also id. at 331 (“FIFRA’s

express preemption clause is self-executing.”). Because of the

facts of this particular case, however, the analytical

disagreement between Geye and Bates is irrelevant.

Unlike the older herbicides at issue in Geye, Strongarm’s

application for registration under the EPA’s new procedures

established by the Reduced Risk Initiative required Dow

AgroSciences to submit a comprehensive body of data on

Strongarm’s efficacy and safety for use on peanut crops.

The EPA considered that data and approved a label warning

specifically addressing soil pH factors as affecting crop safety.

Whether those warnings were adequate and sufficient in

Petitioners’ view does not change the fact that the EPA

affirmatively exercised its regulatory authority on precisely

the issues Petitioners challenge. The “exception to preemption”

created in Geye, therefore, simply does not apply to the facts

of this particular case.

B. Petitioners’ Claims Are All Label-Based Because

Their Other Claims All Failed As A Matter Of Texas

State Law.

Petitioners are wrong to argue that review is required

because of allegedly differing analyses employed by the courts

when determining whether a state-law claim is merely a

disguised (hence preempted) challenge to a product label.

Pet. at 19-27. Petitioners argue that their pleading of ar

extravagant variety of claims supports the necessity of review.

This Court, however, commands that the preemptive force of

federal statutes may not be evaded by mere pleading tactics.

Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co.,

450 U.S. 311, 324 (1981) (“[C]ompliance with the [pre-emptive]

intent of Congress cannot be avoided by mere artful

pleading.”). More important, Petitioners’ failure to offer proof

on essential elements of their state-law claims proves, by

process of elimination, that all their claims were label-based

and that, therefore, their lengthy discussion of differing “tests”

for preemption is irrelevant. Petitioners’ default on this point

results in a waiver of the arguments they make to this Court.

Petitioners did not offer proof that there was a safer,

feasible alternative design for Strongarm’s chemical

composition. Accordingly, all their claims for negligent

development, manufacturing and design, design-defect strict

liability, and breach of implied warranty failed as a matter of

black-letter Texas state substantive law. Am. Tobacco Co., Inc.

v. Grinnell, 951 S.W.2d 420, 437 (Tex. 1997). See also id. at 433

n.9; Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335

n.4 (Tex. 1998) (citing Caterpillar, Inc. v. Shears, 911 S.W.2d 379,

384 (Tex. 1995)), cert. denied, 526 U.S. 1040 (1999); Smith v.

Louisville Ladder Corp., 237 F.3d 515, 521 (5th Cir.), reh’g en banc

denied, 250 F.3d 745 (5th Cir. 2001) (“[B]ecause [Petitioners]

failed to establish a safer alternative design for [Strongarm],

[their] claim predicated on breach of implied warranty must

fail, along with [their] design defect claim.”).

Petitioners’ failure to offer evidence of a safer, feasible

alternative design, moreover, apparently drives their

misrepresentation of a key holding in Bates by a cautious

omission of important language immediately preceding and

surrounding the snippet they pretend accurately to quote.

Petitioners accuse the Fifth Circuit of dramatically expanding

doctrinaire FIFRA jurisprudence, “stating that the claims were

preempted because they would have the ‘undeniable practical

effect’ of inducing a manufacturer to alter the product or label

to avoid liability.”” Pet. at 26 (citing 332 F.3d at 329 n.9

(Petitioners’ emphasis). See also id. at 27 (same). What the Fifth

Circuit really said was that “different requirements may be

imposed” when success on a common law claim induces a

manufacturer “to alter the product or label to avoid liability”

(332 F.3d at 329 n.9 (emphasis added)) and that “the farmers’

claims are expressly preempted under § 136v(b) if a judgment

against Dow would induce it to alter its product label.”

Id. at 331 (citation omitted, emphasis added).

Il. This Court Has Strongly Indicated, And Nine Federal

Circuits And The Courts Of Twenty-seven States Have

Held, That FIFRA Expressly Preempts All Claims That

Challenge A Product’s EPA-Accepted Label.

A. The Text Of FIFRA § 136v(b) And Its Legislative

History Confirm Congress’ Preemptive Intent.

Congress enacted FIFRA in 1947, and amended it in 1972

to significantly strengthen its registration and labeling

standards. Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597,

601 (1991). The 1972 amendments ensured that FIFRA

regulated the use, sale and labeling of pesticides; and that it

regulated pesticides produced and sold in both intrastate and

interstate commerce. Id. Those amendments also granted

increased enforcement authority to the EPA. Id. In short, the

1972 amendments “’transformed FIFRA from a labeling law

into a comprehensive regulatory statute.’” Id. (quoting

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991 (1984)).

To accomplish one principal objective of FIFRA, achieving

“uniformity of labeling across the nation” (Papas v. Upjohn Co.,

926 F.2d 1019, 1025 (11th Cir. 1991) (“Papas I”), aff'd after remand,

985 F.2d 516 (11th Cir.) (“ Papas II”), cert. denied sub nom. Papas

v. Zoecon Corp., 510 U.S. 913 (1993), Congress expressly

preempted all state authority regarding pesticide labeling and

packaging through 7 U.S.C. § 136v(b), entitled “Uniformity”:

“[A] state shall not impose or continue in effect any

requirements for labeling or packaging in addition to or

different from those required under this subchapter.” °

Given the textual clarity of § 136v(b), resort to FIFRA’s

legislative history is not necessary. That legislative history,

however, confirms Congress’ preemptive intent with equal and

exquisite clarity: “[T]he Committee has adopted language

which is intended to completely preempt State authority in regard

to labeling and packaging.” H.R. Rep. No. 92-511, at 16 (1971)

(emphasis added). See also id. at 1-2 (“State authority to change

Federal labeling and packaging is completely preempted. )

(emphasis added); S. Rep. No. 92-838, pt. 1, at 30 (1972), reprinted

5. The section title “Uniformity” was added through a 1988

amendment, thereby reinforcing Congress’ original preemptive intent.

Papas I, 926 F.2d at 1025.

in 1972 U.S.C.C.A.N. 3993, 4021 (“Subsection (b) preempts any

State labeling or packaging requirements differing from such

requirements under the Act”) (emphasis added). Importantly,

the preemption provisions which ultimately became § 136v(b)

were identical in both the House and Senate versions of H.R.

10729. Compare H.R. 10729, 92d Cong. § 24(b) (1971) (House

bill) with H.R. 10729, 92d Cong. § 23(b) (1972) (Senate version

as amended). Remarkably, Petitioners neglect these dispositive

expressions of preemptive intent in their discussion of FIFRA’s

legislative history (Pet. at 8-11), but the courts have not. See

MacDonald v. Monsanto Co., 27 F.3d 1021, 1025 n.3 (5th Cir.

1994), aff d after remand, 68 F.3d 470 (5th Cir. 1995) (mem.); King

v. E.]. DuPont de Nemours & Co., 996 F.2d 1346, 1349-50 (1st Cir.

1993); Papas I, 926 F.2d at 1023.°

B. This Court Recognized § 136v(b)’s Preemptive Effect

In Mortier.

In Mortier, this Court construed FIFRA § 136v(a), and held

that its preservation of state power to “regulate the sale or use

of any federally registered pesticide or device in the State,”

did not preclude political subdivisions of such states from

exercising that power through positive enactments of law.’

; 6. Petitioners do not just ignore this aspect of FIFRA’s legislative

eae they go much further by affirmatively misrepresenting it. See Section

7. At least thirty-five States (including Texas), however, have

prohibited entirely or restricted severely the regulation of pesticides by

their respective local political subdivisions. See, e.g., ALa. Cove. § 2-27-5.1

(2003); Ariz. Rev. Stat. § 3-337 (2003); Cat. Fooo & Acric. Cope § 11501.1

(Deering 2003); Coro. Rev. Stat. § 35-9-105 (2003); Fia Star. ch. 482.242

(2003); Ga. Cove Ann. § 2-7-113.1 (2002); IDAHO Cope § 22-3426 (2003);

415 It. Comp. Stat. 60/3 (2003); lowa Cope § 206.34 (2003); Kan. Stat. ANN.

§ 2-2480 (2002); Ky. Rev. Stat. ANN. § 217B.270 (Michie 2002); La. REV. Star.

ANN. § 3:3224 (Michie 2003); Mich. Comp. Laws § 324.8328 (2003);

Minn. Stat. § 18B.02 (2002); Miss. Cope ANN. § 69-23-9 (2003); Mo. Rev. Stat.

§ 281.005 (2003); Mont. Cope Ann. § 80-8-120 (2002); Nes. Rev. Star. § 2-2625

(2002); Nev. Rev. Stat. § 586.230 (2003); N.H. Rev. Stat. ANN. § 430:49 (2002);

N.M. Stat. ANN. § 76-4-9.1 (Michie 2003); N.Y. Envr.. Conserv. Law § 33.

0303 (Consol. 2003); N.C. Gen. Stat. § 143-465 (2003); N.D. Cent. Cove

§ 4-35-06.1 (2003); On1o Rev. Cope ANN. § 921.23(C) (Anderson 2003);

Oxta. Star. tit. 2, § 3-85 (2002); Or. Rev. Stat. § 634.057 (2001); 3 Pa. Cons.

Stat. § 111.57 (2003); S.C. Cope ANN. § 46-13-30 (Law. Co-op. 2002);

(Cont'd)

While the construction of § 136v(a) was the Mortier Court's

central focus, it also addressed the preemptive effect of

§ 136v(b) in the context of pesticide labeling and packaging.

This Court, employing a pre-Cipollone implied field

preemption analysis, declared that state law was “impliedly

usurped” in the area of pesticide labeling and packaging and

that pesticide “labeling . . . fall[s] within an area that FIFRA’s

‘program’ pre-empts.” 501 U.S. at 614-15. See also id. at 613.

Indeed, the United States Solicitor General strongly urged this

Court to so hold:

To be sure, an exclusively federal approach is

necessary in certain areas of pesticide regulation.

One such area is labeling. Due to the burden on

commerce that would be imposed by different

labeling requirements in states and localities across

the country, Congress clearly preempted all but federal

regulation of labels. Sec. 7 U.S.C. § 136v(b).

Brief for United States as Amicus Curiae, at 22, Mortier, 501 US.

597 (No. 89-105).°

Petitioners studiously ignore Mortier’s instructions on the

preemptive effect of § 136v(b), but, again, the courts have not.

The Seventh and Tenth Circuits, for instance, read Mortier’s

teachings to mandate preemption: “The Supreme Court

recently noted the absolutist nature of FIFRA’s pre-emption in

the labeling and packaging context... .” Shaw v. Dow Brands,

Inc., 994 F.2d 364, 370 (7th Cir. 1993) (emphasis added);

Arkansas-Platte & Gulf P’ship v. VanWaters & Rogers, Inc., 959

F.2d 158, 164 (10th Cir. 1992) (“Arkansas-Platte I”) (finding

preemption and holding: “We base our holding on the

language of § 136v. . .and our understanding of the Supreme

Court's construction of FIFRA in Mortier.”), aff d after remand,

981 F.2d 1177 (10th Cir.) (“Arkansas-Platte II”), cert. denied sub

(Cont'd)

TENN. Cove ANN. § 43-8-114 (2003); Tex. Acric. Cope ANN. § 76.101 (Vernon

2003); Vr. Stat. ANN. tit. 6, § 917 (2003); W. Va. Cove § 19-16A-2 (2003); Wis.

Stat. § 94.701 (2002).

8. The Solicitor General recently reaffirmed uxe United States’ formal

position that § 136v(b) expressly preempts state common law in its amicus

brief filed before this Court in Am. Cyanamid Co. v. Geye, 79 S.W.3d 21 (Tex.

2002), cert. denied, 123 S.Ct. 2637 (2003). See Section II I.

nom. Arkansas-Platte & Gulf P’ship v. Dow Chem. Co., 510 U.S.

813 (1993). See also Hue v. Farmboy Spray Co., Inc., 896 P.2d 682,

691 (Wash. 1995) (“The United States Supreme Court, seven

federal courts of appeal, dozens of district courts and state

courts all concur: in preempting state labeling ‘requirements,’

Congress intended to preempt both direct labeling regulations

and common law labeling duties enforced through damages

actions.”) (emphasis added).

C. Petitioners Mischaracterize FIFRA’s Legislative

History And Mortier.

Petitioners argue that FIFRA’s legislative history

demonstrates that Congress did not intend to preempt state

tort law because the EPA’s former General Counsel, John

Quarles, testified regarding an early draft of a proposed

amendment in 1971 that it “does not affect tort liability.”

Pet. at 9. This is a grave mischaracterization of what actually

occurred.

First, the bill about which Mr. Quarles was testifying,

H.R. 4152 (introduced February 10, 1971), did not even contain

a preemption provision. It was a later House bill, H.R. 10729

(introduced on September 16, 1971), that contained a

preemption provision. H.R. 10729, 92d Cong. § 24(b) (1971).

Second, Mr. Quarles’ testimony addressed a hypothetical tort

action between two farmers for crop damage due to

misapplication of a pesticide and had nothing to do with

preemption of state law challenges to EPA-approved labeling.

See Federal Pesticide Control Act of 1971: Hearings Before the House

Committee on Agriculture, 92d Cong. 8, at 42 (1971). Petitioners’

mischaracterization of Mr. Quarles’ testimony is misleading

and disingenuous and they compound their errors by

mischaracterizing this Court's discussion of FIFRA’s legislative

history in Mortier.

Not only do Petitioners pretend away Mortier’s

endorsement of § 136v(b)’s preemptive effect (501 US. at

614-15), they materially misrepresent Mortier’s holdings,

arguing: “As noted by this Court, the Committee Reports

underlying FIFRA’s preemption clause are contradictory at

best. Mortier, 501 U.S. at 609-10.” Pet. at 10.° The legislative

histories the Mortier Court was discussing, however, were the

antecedents of § 136v(a), not the legislative history of § 136v(b).

The issue discussed, moreover, was not the preemptive effect

of § 136v(b), but whether § 136v(a) preempted regulatory

action by political subdivisions of states through positive

enactments of law.

Petitioners’ discussion of the legislative history that they

pretend relates to § 136v(b), but which in truth relates to

§ 136v(a), is further misleading because the legislative history

they discuss relates only to FIFRA’s well-established and

comprehensive regulatory partnership between the federal

government and the states’ respective administrative and

executive agencies. See Pet. at 9-10. To accommodate “regional

and local factors like climate, population, geography, and water

supply” (501 U.S. at 614), “FIFRA implies a regulatory

partnership between federal, state and local governments.”

Id. at 615 (original emphasis). See also id. at 601-02. Each of the

states, and the District of Columbia, has joined this

comprehensive federal/state regulatory partnership by

enacting their own regulatory regimes to govern the sale and

use of pesticide products within their own borders, but the

limitations of space do not permit a comprehensive citation to

each of them on this point.

This massive body of state legislative action confirms that

Congress’ use of the terms “regulate” and “regulation” in

§ 136v(a)'s preservation of state authority over pesticide sales

and use detracts in no way from the federal preemption of

state law “requirements,” as used in § 136v(b), with respect to

EPA-approved labeling.

Read against the backdrop of regulatory activity

undertaken by state legislatures and federal

agencies in response to [the enactment of FIFRA],

the term “regulation” most naturally refers to

positive enactments by those bodies, not to

common-law damages actions.

9. Petitioners’ statement here is demonstrably false because the

preemption provisions that ultimately became § 136v(b) were identical in

both the House and Senate versions of H.R. 10729. See Section IIA.

Cipollone, 505 U.S. at 519. It follows from Mortier and Cipollone,

therefore, that the terms “regulate” and “regulation” in

§ 136v(a)’s preservation of state authority “to regulate the sale

or use of” pesticides through “regulation” mean positive

enactments of law and administrative agency action, not state

“regulation” of pesticide labeling through imposing state

“requirements for labeling . . . in addition to or different from

those required under” FIFRA, either through positive

enactments of lav’ or common law tort actions, the domain

expressly preerswt.d by § 136v(b). Otherwise, the enactment

of § 136v(b) “would have been doubly superfluous given

FIFRA’s historic focus on labeling to begin with.” Mortier, 501

U.S. at 613 (citation omitted). E.g., Barnhart v. Sigmon Coal

Co., 534 U.S. 438, 454 (2002) (“We refrain from concluding here

that the differing language in the two subsections has the same

meaning in each. We would not presume to ascribe this

difference to a simple mistake in draftsmanship.”) (internal

quotation marks and citation omitted); United States v. Locke,

529 U.S. 89, 106 (2000) (“We decline to give broad effect to

savings clauses where doing so would upset the careful

regulatory scheme established by federal law.”) (citations

omitted).

D. This Court Has Indicated That Its Enforcement Of

The Self-Executing Express Preemption Clause Of

The 1969 Cigarette Act In Cipollone Drives The

FIFRA Preemption Analysis.

In Cipollone, decided the next term after Mortier, the Court

construed § 5(b) of the 1965 Federal Cigarette Labeling and

Advertising Act (the “1965 Cigarette Act”), and its successor,

§ 5(b) of the Public Health Cigarette Smoking Act of 1969 (the

- “1969 Cigarette Act”).’° Writing for the plurality, Justice

Stevens concluded that the text of the 1969 Act mandated

express preemption of state law failure to warn claims and

that there was “no cause to look beyo. .d” that text. 505 U.S. at

10. Section 5(b) of the 1969 Cigarette Act provides: “(b) No

requirement or prohibition based on smoking and heaith shall be imposed

under State law with respect to the advertising or promotion of any

cigarettes the packages of which are labeled in conformity with the

provisions of this Chapter.” 15 U.S.C. § 1334(b).

13°

517 (Stevens, J.). Justice Blackmun agreed “ that the preemptive

scope of the Federal Cigarette [Acts] is ‘governed entirely by

the express language’ of the statutes’ pre-emption provisions.

Ante, 505 U.S. at 517.” 505 U.S. at 531-32 (Blackmun, J.)." Justice

Scalia separately wrote, “The proper rule of construction for

express preemption provisions is, it seems to me, the one that

is customary for statutory provisions in general: Their

language should be given its ordinary meaning.” 505 U.S. at

548 (citations omitted) (Scalia J.). Justices Scalia and Thomas

read the preemptive effect of these statutes more broadly than

Justice Stevens and “believe[d] petitioner’s failure-to-warn

claims [were] preempted by the 1965 Act, and all his common-

law claims by the 1969 Act.” Id. (emphasis added). .

the 1965 and 1969 Acts, as the Cipollone plurality emphasized,

was that the term “requirement,” as Congress used it in the

1969 Act (and in § 136v(b)), is broader than the term

“regulation.” See 505 U.S. at 520-21 & n.19 (the 1969 Cigarette

Act’s preemption clause, which bars ““requirement(s} or

prohibition{s] ... imposed under State law,” is “much

broader” than its predecessor in the 1965 version of the statute,

which was “concerned primarily with ‘regulations’ - positive

enactments, rather than common-law er actions” ). For

that reason, the majority of the Court agreed

preemption of state law requirements in the 1969 Cigarette

Act “easily” preempted common law failure to warn claims.

Six Justices, therefore, held the express preemption clause

of the 1969 Cigarette Act to be automatic and self-executing,

even though the Act “allow[ed] the FTC to regulate

print advertising” (505 U.S. at 520; see also id. at 541-42), much

as FIFRA allows the EPA to regulate pesticide labeling.

See 40 C.F.R. Part 156 (2003). And a unanimous Supreme Court

“held that as long as a federal statute contains an express

preemption clause, itis wholly unnecessary and

11. Justice Blackmun’s di was with the majority's holdings

that the term “State law’ as used in § 5(b)” of the 1969 Act included state

common law. 505 US. at 535.

the express preemption analysis.” Bates, 332 F.3d at 329-30

(construing Cipollone, footnotes omitted). See 505 U.S. at 517

(“[T]he other provisions of the 1965 and 1969 Acts offer no

cause to look beyond § 5 of each Act.”).

Thus, as this Court later explained in Geier v. Am. Honda

Motor Co., 529 U.S. 861, 869-74 (2000), implied conflict

preemption principles arising from regulatory action by federal

agencies may provide additional bases for federal preemption,

compel preemption more broadly than the terms of an express

preemption clause, or trump a statutory savings clause; but an

express preemption clause stands on its own legs and does

not need the importation of implied conflict principles to

support it. E.g., Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199,

1204 (9th Cir. 2002) (FIFRA’s underlying regulatory structure

provides reasons for preemption under ordinary conflicts

principles in addition to and beyond § 136v(b)’s express

preemptive mandate).”

Shortly after deciding Cipollone, this Court vacated the

implied FIFRA preemption decisions in Papas v. Upjohn Co.,

926 F.2d 1019 (11th Cir. 1991) (“Papas I”) and Arkansas-Platte &

Gulf P’ship v. Van Waters & Rogers, Inc., 959 F.2d 158 (10th Cir.

1992) (“Arkansas-Platte I”), and “remanded [them] .. . for

further consideration in light of Cipollone.” Papas v. Zoecon

Corp., 505 U.S. 1215 (1992); Arkansas-Platte & Gulf P’ship v. Dow

Chem. Co., 506 U.S. 910 (1992). Thus, “[t]he Supreme Court

itself has indicated that Cipollone applies to FIFRA preemption

determinations.” King v. E.]. DuPont * Nemours & Co., 996

F.2d 1346, 1349 (1st Cir. 1993); Taylor AG Indus. v. Pure-Gro,

54 F.3d 555, 559 (9th Cir. 1995) (same).

On remand in Papas II, the Eleventh Circuit compared

§ 136v(b) with § 5(b) of the 1969 Cigarette Act and squarely

12. This was the sole point of disugreement between the Fifth Circuit's

decision below and the Texas Supreme Court's decision in Am. Cyanamid

Co. v. Geye, 79 S.W.3d 21 (Tex. 2002), cert. denied, 123 S.Ct. 2637 (2003).

Compare Bates, 332 F.3d at 330 (“Nowhere in FIFRA’s text is § 136v(b)’s

express preemptive command .. . linked to the interplay of EPA

regulations.”); see also id. at 331 (“FIFRA’s express preemption clause is

self-executing.”), with Geye, 79 S.W.3d at 29 (“[T]he scope of FIFRA’s

preemption is dependent on what the EPA regulates, . . .”). Because of the

facts of this particular case, however, this analytical disagreement is

irrelevant.

held that “the Cipollone opinion dictates, under an express

preemption analysis, the same result we reached earlier under

the implied preemption doctrine.” Papas II], 985 F.2d at 518

(citing Papas I, 926 F.2d at 1026). The Tenth Circuit on remand

also affirmed Arkansas-Platte 1, and in accordance with

Cipollone’s teachings, focused on the precise text of § 136v(b)

in concluding that it mandated express preemption. Arkansas-

Platte [1,981 F.2d at 1179 (“We believe Congress circumscribed

the area of labeling and packaging and preserved it only for

federal law. With the same stroke, Congress banned any form

of state regulation. . ..”) (citing Cipollone, 112 S.Ct. at 2618).

“Although the words employed in § 136v(b) of FIFRA are

different from those in § 5(b) of the Cigarette Smoking Act,

their effect is the same. ... We see no difference between the

operative effect of the two acts.” Id. at 1179. The Seventh Circuit

“discern{ed] no significant distinction at all” holding, “[nJot

even the most dedicated hair splitter could distinguish these

statements.” Shaw, 994 F.2d at 371. See also Taylor AG, 54 F.3d

at 559; King, 996 F.2d at 1349. MacDonald v. Monsanto Co.,

27 F.3d 1071, 1024 (5th Cir. 1994) (“Applying the reasoning

articulated in Cipollone to FIFRA and the case at hand, the

conclusion is manifest: FIFRA preempts conflicting state

common law concerning the improper labeling of herbicides,

which is the only common law claim raised in this appeal.”),

aff d after remand, 68 F.3d 470 (5th Cir. 1995) (mem.).

E. Petitioners Wildly Exaggerate Their Argument That

“FIFRA Has Pitted Federal Judges Against State

Judges.”

Since Cipollone, there is broad agreement that the language

of § 136v(b) “manifestly ordains the preemption of the

establishment or enforcement of any common law duty that

would impose a labeling requirement inconsistent with those

established by FIFRA.” Worm v. Am. Cyanamid Co., 5 F.3d 744,

747 (4th Cir. 1993) (“Worm II”) (citation and internal quotation

marks omitted). Following Cipollone, each of the nine federal

Circuits to address the issue, through at least twenty-two

decisions, has easily concluded that FIFRA expressly preempts

~ 16

common law challenges to the adequacy and sufficiency of

pesticide labeling.”

Petitioners simply misstate the law by making their wildly

exaggerated claim that “the confusion surrounding FIFRA has

pitted federal judges against state judges.” Pet. at 4. See also id.

at 6 (decrying “the maze of conflicting case law.”);

id. (“{T)hroughout this time of confusion, FIFRA’s goals of

uniformity and protection of health are eviscerated.”*);

id. at 19 (“[FJederal and state judges are pitted against each

other in the battle over the viability of state law tort claims in

pesticide-related cases.”).

The true facts are these: the Supreme Courts of eighteen

states, in at least twenty-five published decisions, have

confirmed the fundamental rule of FIFRA preemption.” In an

13. E.g., Bates, 332 F.3d 323; Lowe's Home Centers, Inc. v. Olin Corp.,

313 F.3d 1307 (11th Cir. 2002), reh’g and reh’g en banc denied, 61 Fed. Appx.

673 (11th Cir. 2003) (table); Netland v. Hess & Clark, Inc., 284 F.3d 895 (8th

Cir.), cert. denied, 123 S.Ct. 415 (2002); Nathan Kimmel, 275 F.3d 1199; Ruiz-

Guzman v. Amvac Chem. Corp., No. 98-35088, 243 F.3d 549, 2000 WL 1763212

(9th Cir. Nov. 28, 2000); Andrus v. AgrEvo USA Co., 178 F.3d 395 (5th Cir.

1999); Hawkins v. Leslie's Pool Mart, Inc., 184 F.3d 244 (3d Cir. 1999); Lescs v.

William R. Hughes, Inc., No. 97-2278, 168 F.3d 482, 1999 WL 12913 (4th Cir.

Jan. 14, 1999), cert. denied, 528 U.S. 1119 (2000); Nat’l Bank of Commerce

(Arnold) v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999); Kuiper v. Am. Cyanamid

Co., 131 F.3d 656 (7th Cir. 1997), cert. denied, 523 U.S. 1137 (1998); Rodriguez

v. Am. Cyanamid Co., No. 96-15752, 116 F.3d 485, 1997 WL 306430 (9th Cir.

June 5, 1997); Gremier v. Vt. Log Bldgs., Inc., 96 F.3d 559 (1st Cir. 1996); Welchert

v. Am. Cyanamid, Inc., 59 F.3d 69 (8th Cir. 1995); Taylor AG, 54 F.3d 555;

Lowe v. Sporicidin Int'l, 47 F.3d 124 (4th Cir. 1995); Bice v. Leslie’s Poolmart,

Inc., 39 F.3d 887 (8th Cir. 1994); MacDonald, 27 F.3d 1021; Worm II, 5 F.3d

744; King, 996 F.2d 1346; Shaw, 994 F.2d 364; Papas I], 985 F.2d 516; Arkansas-

Platte 11, 981 F.2d 1177.

14. Petitioners do not explain, because they cannot explain, why

allowing their common law challenges to Strongarm’s EPA-approved label

in a crop damage case would promote rather than “eviscerate” “FIFRA’s

goals of uniformity and protection of health.” Common law litigation over

EPA-approved product labeling would destroy FIFRA’s goals of achieving

national uniformity in pesticide labeling and common law litigation over

crop damage cases has nothing to do with the protection of health.

15. Etcheverry v. Tri-Ag Service, Inc., 993 P.2d 366, 373 (Cal. 2000);

Banks v. ICI Americas, Inc., 450 S.E.2d 671, 676 (Ga. 1994); Kawamata Farms,

Inc. v. United Agri Prods., 948 P.2d 1055, 1074 (Haw. 1997); Dow Chem. Co. v.

(Cont'd)

mM «

additional nine states where the issue has not yet reached their

respective state Supreme Courts, intermediate state courts of

appeal have also confirmed the fundamental rule of FIFRA

preemption.’* Based on the particular facts of this case,

therefore, nine federal Circuits and twenty-seven states

(Cont'd)

Ebling, 753 N.E.2d 633, 635-36 (Ind. 2001); Wright v. Am. Cyanamid Co., 599

N.W.2d 668, 671 (lowa 1999); Ackerman v. Am. Cyanamid Co., 586 N.W.2d

208, 213-14 (lowa 1998); Ackles v. Luttrell, 561 N.W.2d 573, 579-80 (lowa

1997); Schuver v. E.1. Du Pont de Nemours & Co., 546 N.W.2d 610, 615-16

(lowa 1996); Clubine v. Am. Cyanamid Co., 534 N.W.2d 385, 387-88 (lowa

1996); Jenkins v. Amchem Prods., Inc., 886 P.2d 869, 879 (Kan. 1994),

cert. denied, 516 U.S. 820 (1995); Hopkins v. Am. Cyanamid Co., 666 So. 2d

615, 621 (La. 1996); Hochberg v. Zoecon Corp., 657 N.E.2d 1263, 1266 (Mass.

1995); Goeb v. Tharaldson, 615 N.W.2d 800, 817 (Minn. 2000); Eyl v. Ciba-

Geigy Corp., 650 N.W.2d 744, 759-60 (Neb. 2002), cert. denied, 123 S. Ct. 2646

(2003); Pfeifer v. E.1. Du Pont de Nemours & Co., 606 N.W.2d 773, 778 (Neb.

2000); Davidson v. Velsicol Chem. Corp., 834 P.2d 931, 934 (Nev. 1992),

cert. denied, 507 U.S. 1051 (1993); Lewis v. Am. Cyanamid Co., 715 A.2d 967,

971 (N.J. 1998); DiPetrillo v. Dow Chem. Co., 729 A.2d 677, 682 (R.1. 1999);

Eide v. E.1. Du Pont de Nemours & Co., 542 N.W.2d 769, 772 (S.D. 1996);

Quest Chem. Corp. v. Elam, 898 S.W.2d 819, 820-21 (Tex. 1995); Goodwin v.

Bacon, 896 P.2d 673, 678-81 (Wash. 19°°); All-Pure Chem. Co. v. White, 896

P.2d 697, 703-04 (Wash. 1995); Hue v. Farmboy Spray Co., Inc., 896 P.2d 682,

894-95 (Wash. 1995); Gorton v. Am. Cyanamid Co., 533 N.W.2d 746, 753

(Wis. 1995), cert. denied, 516 U.S. 1067 (1996). The Hawaii and Idaho Supreme

Courts agree with FIFRA preemption generally, but hold that it extends

only to label statements required by the EPA, not to voluntary label

statements. See Walker v. Am. Cyanamid Co., 948 P.2d 1123, 1128 (Idaho 1997);

Kawamata Farms, 948 P.2d at 1080. But see Sleath v. W. Mont Home Health

Servs., Inc., 16 P.3d 1042 (Mont. 2000), cert. denied sub nom. Dow AgroSciences

LLC v. Sleath, 534 U.S. 814 (2001).

16. Dillon v. Zeneca Corp., 42 P.3d 598, 601 (Ariz. Ct. App. 2002); ISK

Biotech Corp. v. Douberly, 640 So. 2d 85, 89 (Fla. Dist. Ct. App. 1994); Traube

v. Freund, 775 N.E.2d 212, 217 (Ill. App. Ct.), appeal denied, 787 N.E.2d 170

(Ill. 2002); Moody v. Chevron Chem. Co., 505 N.W.2d 900, 903 (Mich. Ct. App.

1993); M & H Enterprises v. Tri-State Delta Chems., Inc., 984 S.W.2d 175, 178

(Mo. Ct. App. 1998); Warner v. American Flouride Corp., 616 N.Y.S.2d 534,

541 (N.Y. App. Div. 1994); Hopkins v. Ciba-Geigy Corp., 432 S.E.2d 142, 146

(N.C. Ct. App. 1993); Romah v. Hygienic Sanitation Co., 705 A.2d 841, 856

(Pa. Super. Ct. 1997), aff'd without opinion, 737 A.2d 249 (Pa. 1999); Hughes

v. Tennessee Seeds of Brownsville, Inc., 970 S.W.2d 471, 474 (Tenn. Ct. App.

1997). Duplicative intermediate state appellate court decisions, and there

are many, have not been included in this listing. But see Brown v. Chas. H.

Lilly Co., 985 P.2d 846 (Or. Ct. App. 1999).

(including Texas) would all agree that Petitioners’ claims here

were properly held to be preempted. Petitioners’ lamentations

of a supposed “jurisprudential mare’s nest” (see Pet. at 3, 12),

therefore, are wildly exaggerated, if not demonstrably untrue.

F. This Court Reinforced The Automatic And Self-

Executing Effect Of Express Preemption Statutes In

Medtronic.

Citing Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996),

Petitioners argue that “this Court’s Medtronic reasoning implies

that where the federal government has not issued regulations

specific to the product or claim at issue, state tort claims in the

unregulated area will not be preempted.” Pet. at 16.” Contrary

to Petitioners’ argument, however, this Court in Medtronic

again emphasized that the preemptive force of § 5(b) of the

1969 Cigarette Act (like § 136v(b) of FIFRA) is automatic and

self-executing. Justice Stevens’ opinion specifically

distinguished § 5(b) of the 1969 Cigarette Act from the

preemption regime under the Medical Device Amendments

of 1976 (“MDA”), where preemption is dependent upon the

regulatory actions taken pursuant to the administration of that

statute. Under the MDA:

Congress explicitly delegated to the FDA the

authority to exempt state regulations from the pre-

emptive effect of the MDA — an authority that

necessarily requires the FDA to assess the pre-

emptive effect that the Act and its own regulations

will have on state laws.

518 U.S. at 496 (citing 21 U.S.C. § 360k(b)). See also id. at 505-06

(Breyer, J.). Dispositively, there is no similar Congressional

delegation of power to the EPA to exempt state law from

preemption anywhere in FIFRA’s statutory structure.

Comparing the MDA’s preemptive regime to the express

preemptive force of § 5(b) of the 1969 Cigarette Act, Justice

Stevens emphasized: “Unlike the statute construed in Cipollone

... pre-emption under the MDA does not arise directly as a

17. This argument overlooks this Court's settled jurisprudence in

cases like Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), decided

the same term as Cipollone. See also United States v. Locke, 529 U.S. 89, 115

(2000) (“It is not always a sufficient answer to a claim of pre-emption to

say that state rules supplement . . . federal requirements.”).

result of the enactment of the statute... .” 518 U.S. at 496.

“The territory exclusively occupied by federal law [in Cipollone]

was defined by the text of the statute itself.” Id. at 489 n.9.

Comparing Justice Stevens’ plurality opinions in Cipollone and

Medtronic, therefore, illustrates the important distinction

between an automatic and self-executing preemption statute

like § 136v(b) and a preemption regime tied to the timing,

specificity and vigor of underlying regulatory activity.

While there are many distinctions between the MDA’s

regulation-dependent preemptive regime and enforcement of

FIFRA’s express preemption clause, California’s Supreme

Court summarized this primary distinction upon which a

massive body of authority agrees:

Medtronic is distinguishable on the ground

Congress gave the federal Food and Drug

Administration (FDA) a unique role in determining

the scope of preemption under the MDA....

Congress did not give the EPA an analogous role

in implementing FIFRA. (See Oliver v. Reckitt &

Colman, Inc., supra, 12 F. Supp. 2d at p. 1291 [“[T]he

Court's decision in Medtronic was influenced by the

authority given to the FDA, an authority not given

to the EPA.”]; Kuiper v. American Cyanamid Co.,

supra, 960 F. Supp. at p. 1384 [“ FIFRA does not have

a corresponding federal regulation which limits its

preemptive effect... .Sucha regulation, along with

the MDA’s particular statutory language, was

critical to the Court's opinion in Medtronic.” }.)

Etcheverry, 993 P.2d at 373 (brackets and second ellipsis

original).}*

18. See also, Netland, 284 F.3d at 899 & n.4 (“[O]ur sister circuits have

concluded that the established interpretation of the FIFRA preemption

clause is unchanged by . . . Medtronic.”); Nathan Kimmel, 275 F.3d at 1206

(rejecting argument that Medtronic permitted state law cause of action for

“fraud on the EPA”); Hawkins, 184 F.3d at 250 (“[W]e do not read [Medtronic]

as standing for the overarching premise that tort claims fall outside

‘preempted requirements.’”); Lescs, 1999 WL 12913, at *7 (“FIFRA

preemption ... is unchanged by Medtronic.”) (Lescs contains the most

thorough and elaborate circuit analysis of the reasons why the Medtronic

plurality opinion does not change the express FIFRA preemption analysis.

(Cont'd)

G. Petitioners’ Argument That Common Law Litigation

Is The Only Mechanism By Which Pesticide Efficacy

Is “Regulated” Is Irrelevant And Wrong.

Petitioners misstate the facts and the law by arguing that

“state law tort suits are the only legal vehicle serving to

regulate the efficacy of pesticides.” Pet. at 7. See also id. at 27

(“[N]o agency or individual is regulating the efficacy of this

nation’s pesticides.”).!* The gist of Petitioners’ argument is

that when Congress ovsts all state authority from a given

subject matter, it must replace that preempted state authority

(Cont d)

See 1999 WL 12913, at *4-7); Grenier, 96 F.3d at 563 (“It . . . is now settled by

. . . Cipollone and [Medtronic], that ‘requirements’ in this context

presumptively includes state causes of action.”); Anderson v. Dow

AgroSciences LLC, 262 F. Supp. 2d 1280, 1287 (W.D. Okla. 2003) (“[MJost

courts which have analyzed FIFRA’s preemption clause after Medtronic

agree that the established interpretation of FIFRA’s preemption clause

remains unaffected.”) (collecting authorities); Lucas v. Bio-Lab, Inc., 108

F. Supp. 2d 518, 521 n.2 (E.D. Va. 2000); Oliver v. Reckitt & Colman, Inc., 12

F. Supp. 2d 1287, 1292 (M.D. Fla. 1998); Hawkins v. Leslie’s Poolmart, 965

F. Supp. 566, 572 (D. N.J. 1997) (“Medtronic did not alter the law of FIFRA

preemption.”), aff'd in relevant part, 184 F.3d 244 (3d Cir. 1999); Kuiper v.

Am. Cyanamid Co., 960 F. Supp. 1378, 1383-84 (E.D. Wis. 1997) (“Medtronic

simply does not alter the Court's conclusion in this case.”), aff'd, 131 F.3d

656 (7th Cir. 1997), cert. denied, 523 U.S. 1137 (1998); Koch v. Shell Oil Co.,

173 F.R.D. 288, 289-90 (D. Kan. 1997); Ackerman, 586 N.W.2d at 212-13

(Medtronic “ does not alter the law regarding preemption”); Eyl, 650 N.W.2d

at 753 (“[W]e have already considered the effect of Medtronic, Inc. on the

issue of FIFRA preemption in Ackles and determined that FIFRA preempts

failure-to-warn claims.”); Ackles, 561 N.W.2d at 580; Pfeiffer, 606 N.W.2d at

776; Lewis, 715 A.2d at 972 (Medtronic “does not alter the conclusion that

FIFRA preempts plaintiff's failure-to-warn claim”); Lewis v. Am. Cyanamid

Co., 682 A.2d 724, 729 (N.J. Super. Ct. App. Div. 1996) (“Medtronic is not

inconsistent with Cipollone, ...claims based on inadequate labeling are

preempted by FIFRA.”), affd in relevant part, 715 A.2d 967 (N.J. 1998);

Kawamata Farms, 948 P.2d at 1074 (citing Medtronic in support of holding

that “the words ‘requirements’ in §136v(b) presumptively includes state

common law tort causes of action as well as state laws and regulations.”);

Sherman v. Claire Mfg. Co., 657 N.Y.S.2d 453, 454 (N.Y. App. Div.), appeal

dismissed in part, denied in part, 686 N.E.2d 1361 (N.Y. 1997); Romah,

705 A.2d at 851-52; Didier v. Drexel Chem. Co., 938 P.2d 364, 366 (Wash Ct.

App. 1997). But see Sleath, 16 P.3d 1042; Brown, 985 P.2d 846.

19. Petitioners cite Andrus, 178 F.3d at 399, to support this latter

statement but Andrus, of course, says nothing of the kind.

with a corresponding federal regulatory program in order for

preemption to be complete. That clearly is not the law.

E.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).

Petitioners’ argument, therefore is irrelevant under the settled

jurisprudence of this Court.

Petitioners further misplace reliance on a 1978 amendment

to FIFRA that, without changing a syllable of § 136v(b),

permitted the EPA to selectively rather than automatically

review efficacy data during the initial product registration

process. Pet. at 7 (quoting 7 U.S.C. § 136a(c)(5)). From that 1978

amendment, Petitioners leap to the faulty conclusion that just

because the EPA requires submission of efficacy data

selectively rather than automatically during the initial

registration process, it does not exercise regulatory authority

over label statements concerning efficacy. To the contrary, the

EPA heavily regulates efficacy issues; the discretion accorded

the EPA to selectively waive the otherwise automatic and

mandatory submission of such data changes only the methods

of such regulation. ,

First, regardless of the EPA’s discretionary data waiver

authority during the initial registration process, pesticide

registrants are nevertheless required to generate efficacy data,

to balance that data with the proposed label instructions, and

to hold that data ready for EPA review as it may require. 40

C.F.R. § 158.640(b)(1) (2003). If Petitioners’ argument that

FIFRA preemption depends upon the timing and intensity of

EPA scrutiny of efficacy data were to succeed, it would have

the perverse effect of forcing applicants to automatically deluge

the EPA with data it neither wants nor needs in the initial

registration process in order to protect themselves from that

loophole in preemption.

Such an approach would force FIFRA applicants

to ensure that their disciosures to the EPA would

satisfy not only the standards imposed by that

agency under federal law, but also the potentially

heterogeneous standards propounded by each of

the 50 States. Such a holding would in turn

motivate potential applicants under FIFRA to

“submit a deluge of information that the [EPA]

neither wants nor needs, resulting in additional

burdens on the [EPA's] evaluation of an

application.” Id. at 351. This outcome would

needlessly drain the EPA of its limited resources,

Nathan Kimmel, 275 F.3d at 1207 (quoting Buckman Co. v.

Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) (alterations in

original)).

Moreover, Petitioners ignore FIFRA’s comprehensive post-

registration data reperting requirements (7 U.S.C. § 136d(a)(2)

and 40 C.F.R. Part 159), and the comprehensive regulation of

efficacy issues by state administrative agencies.

[T]here [are] two [more] fundamental flaws in the

argument that pesticide efficacy will go “largely,

or entirely, unregulated” if state failure-to-warn

claims are preempted: (1) Although the EPA has

waived the submission of efficacy data for

agricultural pesticides at the time of their initial

registration, the agency does require and review

such data if efficacy-related problems develop later;

and (2) California [like Texas] has a comprehensive

registration and regulatory program for pesticides,

and while the California Department of Pesticide

Regulation may not impose its own requirements

for labeling, it can restrict or prohibit the sale or

use of products that it determines are inefficacious

or phytotoxic.

Etcheverry, 993 P.2d at 375 (original emphasis). See also id. at

375-76 (describing EPA’s comprehensive post-registration

regulation); id. at 376 (describing California's state regulatory

program). Compare Tex. Acric. Cope ANN. §§ 76.001-76.203

(Vernon 2003). See also id. at § 76.046(c)(3) (permitting the denial

or cancellation of registration of a pesticide that is “detrimental

to vegetation, except weeds”). In point of fact, the state

regulatory programs of at least twenty-four states join Texas

in specifically addressing and regulating efficacy issues.”

20. See, e.g., Ata. Cope. § 2-27-2(24)(b)(4) (2003) (pesticide is

“misbranded” if it harms “ vegetation, except weeds, to which it is applied”);

(Cont'd)

Cont'd

oo . Stat. § 3-341(17)(b)(vi) (Michie 2003) (pesticide is “ misbranded”

if it is “injurious to . . . vegetation, other than the pest to which it is applied”);

Ark. Cope ANN. § 2-16-402 (2003) (one purpose of the Arkansas Pesticide

Control Act is to eliminate “ ineffective” pesticides); Cat. Cove Ress. tit. 3,

§ 6186 (2003) (“Each application for registration or amendment to the

labeling of a pesticide shall be accompanied by data supporting each efficacy

claim.”); id. § 6192 (reserving right to request phytotoxicity data in

considering registration); Couo. Rev. Stat. § 35-9-107(1)(e) (2003) (reserving

right to request full description of tests and results including “efficacy and

hazard data upon which the claims are based”); Conn. GEN. Stat. § 22a-49

(2003) (reserving right to request a report regarding “tests that have been

made to establish the effectiveness of the product against the pest which is

to be controlled”); Fia. Stat. ch. 487.025(g) (2003) (pesticide is “ misbranded”

if it is “injurious to . . . vegetation, except weeds, to which it is applied”);

id. ch. 487.041 (reserving right to require “evidence of the efficacy” of

pesticides); Fla. ADMIN. Cope ANN. r. 5E-2.031 (2003) (state agency may

require submission of “summaries of data from pesticide efficacy studies ”

in registering pesticides); Inv. Cope ANN. § 15-3-3.5-2(19)(b)(vii) (Michie

2003) (pesticide is “misbranded” if it is “injurious to . .. vegetation, except

weeds, to which it is applied”); Mp. Cope Ann., Acric. § 5-101(q)(8) (2002)

(same); Miss. Cove ANN. § 69-23-3(bb)(viii) (2003) (same); Mont. Cope ANN.

§ 80-8-102(25)(b)(vii) (2002) (same); Nev. Rev. Stat. ANN. § 586.180(2)(g)

(Michie 2003) (same); N.Y. Env. Conserv. Law § 33-0101(32)(g) (Consol.

2003) (same); N.Y. Comp. Copes R. & Recs. tit. 6, § 326.14(h) (2003) (reserving

right to collect “ product effectiveness data” for pesticides); N.C. Gen. Star.

§ 143-435 (2003) (one purpose of the North Carolina Pesticide Law of 1971

is “[m]ore extensive observation, study and monitoring of the effectiveness

and the use of pesticides . . . .”); id. § 143-460(23)(b)(7) (pesticide is

“ misbranded” if it is “injurious to . . . vegetation, except weeds, to which it

is applied”); N.D. Cent. Cope § 19-18-2(19)(b)(10) (2003) (same); OKLA. Stat.

tit. 2, § 3-81(28)(b)(7) (2003) (same); R.I. Gen. Laws § 23-25-3 (2002) (one

purpose of the Pesticide Control Act is to ensure that pesticides are not

“ineffective”); S.D. Copiriep Laws § 38-20A-4 (Michie 2003) (secretary

may request “efficacy” data from the applicant); TENN. Cope ANN.

§ 43-8-102(10)(G) (2003) (pesticide is “ misbranded” if it is “injurious to...

vegetation, except weeds, to which it is applied”); id. § 43-8-104(b);

Tex. Acric. Cove ANN. § 76.046(c)(3) (Vernon 2003); 23 Tex. Rec. 491 (board

may approve any pesticide registered for structural pest control “as long

as ... efficacy has been demonstrated”); UtaH Cope ANN. § 4-14-3 (2003)

(requiring submission of “any information prescribed by regulation of the

department deemed necessary for the safe and effective use of the

pesticide”); Vt. Stat. ANN. tit. 6, § 911(15)(B)(vii) (2003) (pesticide is

“misbranded” if it is “ injurious to. . . vegetation, except weeds, to which it

is applied”); Va. Cove ANN. § 3.1-249.27 (Michie 2003) (same); id. § 3.1-249.39

(Cont'd)

Therefore, as Etcheverry explained, the EPA heavily

regulates efficacy issues; § 136a(c)(5) changes only the methods

of that regulation. The states, too, heavily regulate efficacy

issues through their respective regulatory and administrative

agencies. Accordingly, Petitioners’ argument against

§ 136v(b)’s express preemptive command, that an additional

layer of common law tort “regulation” of pesticide efficacy is

necessary to achieve FIFRA’s goals, is misplaced and incorrect.

Gade v. National Solid Wastes Mgmi. Ass‘n, 505 U.S. 88, 103 (1992)

(“[I]t is not enough to say that the ultimate goal of both federal

and state law is the same, [a] state law is also pre-empted if it

interferes with the methods by which the federal statute was

designed to reach that goal.”) (citations, internal quotation

marks and brackets omitted). Thus, “[FIFRA] does not

foreclose a state from enacting its own laws to advance the

goal of [crop] safety, but it does restrict the ways in which it

can do so.” Id.

H. Petitioners’ Focus On A 1978 Amendment To FIFRA

Overlooks An Important Holding In Cipollone And

FIFRA’s 1988 And 1996 Amendments.

By focusing on the 1978 amendment to FIFRA, Petitioners

also overlook Cipollone’s holding that “the views of a

subsequent Congress form a hazardous basis for inferring the

intent of an earlier one.” 505 U.S. at 520 (quoting United States

v. Price, 361 U.S. 304, 313 (1960)). “Plaintiff's reliance on

subsequent legislative history showing an intent that common-

law causes of action are not preempted is also misplaced.

The plain language of § 136v(b) and its legislative history show

a preemptive intent, and subsequent legislative history cannot

negate that intent.” Jenkins v. Amchem Prods., Inc., 886 P.2d 869,

879 (Kan. 1994), cert. denied, 516 U.S. 820 (1995).

(Cont'd)

(reserving right to require data on “ product efficacy”); WasH. Rev. Cope §

15.58.130(2)(d)(iv) (2003) (pesticide is “ misbranded” if it does not contain

directions, warnings, or cautionary statements necessary to protect “ useful

vegetation”); W. Va. Cove § 19.16A-3(27)(H) (2003) (pesticide is

“misbranded” if it is “injurious to . . . vegetation to which it is applied”

except weeds). The limitations of space do not permit further citation to

state regulatory programs addressing efficacy issues more generally, rather

than with the specificity of the cited state regulatory provisions.

Moreover, assuming subsequent Congressional action

may illuminate the preemptive intent of a prior Congress,

Petitioners’ argument defeats itself because in concentrating

on a 1978 amendment, they overlook the fact that a 1988

Congress reinforced the 1972 Congress’ express preemptive

command by adding the heading “Uniformity” to § 136v(b)

without changing the language of the statute. Papas I, 926 F.2d

at 1025.

Of equal significance is the fact that Congress has

remained silent in the face of Cipollone and its

FIFRA progeny. If the interpretation of

congressional purpose by so many courts were

incorrect, Congress could enact corrective

legislation. Its silence here — in the face of a

uniform, widespread and rapidly growing wave

of precedent — may be deemed a conscious

acquiescence in the conclusion we and others have

reached.

Hue v. Farmboy Spray Co., Inc., 896 P.2d 682, 691 (Wash. 1995)

(citations omitted). Indeed, on August 3, 1996, a year after Hue,

Congress amended and re-enacted FIFRA through the Food

Quality Protection Act of 1996, and left its express preemption

clause undisturbed. Congressional silence in 1996, in light of

overwhelming federal and state law finding preemption since

Cipollone, is thunderous in its effect.

I. The United States Solicitor General And The EPA

Have Expressly Repudiated The Prior Anti-

Preemption Arguments Made In Etcheverry.

Petitioners are wrong to rely upon and argue from the

unsuccessful amicus curiae brief filed by the EPA and the

Environmental and Natural Resources Division of the United

States Department of Justice (not the United States Solicitor

General, as Petitioners incorrectly argue, Pet. at 4, 21) before

the California Supreme Court in Etcheverry, an abbreviated

version of which was filed in Hart v. Bayer Corp., 199 F.3d 239

(5th Cir. 2000), to support their argument that FIFRA does not

preempt state law causes of action against herbicide

manufacturers that challenge the accuracy and sufficiency of

EPA-approved product labels. See Pet. at 4, 11-12, 21-22.”

First, as Petitioners concede (Pet. at 5, 21) the United States

Solicitor General has directly repudiated the EPA’s former

position on FIFRA preemption in its recent amicus curiae brief

before this Court in Am. Cyanamid Co. v. Geye, 79 S.W.3d 21

(Tex. 2002), cert. denied, 123 S.Ct. 2637 (2003), stating in part:

The United States has re-examined the position that

it urged in Etcheverry in light of the ruling of the

California Supreme Court in that case, as well as

the subsequent rulings of other courts, and it has

concluded that its position in Etcheverry that FIFRA

categorically does not preempt common law tort

suits or other damages actions is incorrect. In the

United States’ view, just as Section 136v(b) applies

to requirements imposed in a law enacted by a

legislature or a regulation promulgated by a state

agency, it applies to requirements imposed in the

form of a duty or standard of care in a tort action.

Brief for United States as Amicus Curiae, at 17, Geye, 79S.W.3d

21 (No. 01-0008) (footnote omitted). See also id. at 9 (“[T]}he

United States submits that state-law damages claims are within

the scope of Section 136v(b) where the state-created legal duty

on which the suit is predicated would ‘impose or continue in

effect any requirements for labeling or packaging in addition

to or different from those required under [FIFRA].’”) (second

alteration in original, quoting § 136v(b)).

Unable and unwilling to deal with the United States’

unequivocal endorsement of FIFRA preemption in a

straightforward way, Petitioners instead suggest the EPA might

not agree with the Solicitor General because its separate

counsel did not sign the Geye amicus brief as it had done with

21. The EPA's litigation arguments in Etcheverry were automatically

suspect because the Solicitor General took a directly contrary position in

Mortier, telling this Court that “an exclusively federal approach is necessary

in certain areas of pesticide regulation. One such area is labeling.” Brief for

United States as Amicus Curiae, at 22, Wisconsin P'). Intervenor v. Mortier,

501 U.S. 597 (No. 89-105) (emphasis added). Indeed, the EPA did not even

acknowledge in Etcheverry the Solicitor General's prior emphatic support

for preemption in Mortier.

the earlier Etcheverry amicus brief. Pet. at 21-22. Not only is

this suggestion preposterous, it is factually erroneous. On

October 6, 2003, the EPA issued a press release specifically

endorsing and agreeing with the Solicitor General’s Geye

amicus:

[FIFRA] preempts States from imposing any

requirements for labeling or packaging that are in

addition to or different from Federal law.

Accordingly, crop damage lawsuits that impose

label requirements that are different from the

Federal label requirements are preempted. The

Federal government took this position in a brief to

the United States Supreme Court. The

overwhelming majority of courts that have

considered this issue agree with this legal

interpretation.

EPA has a comprehensive regulatory program

for pesticides, and in particular has extensive

requirements for national product labeling. Every

pesticide product sold in the United States must

bear an EPA-approved label containing cautions

and use directions to ensure its safe and effective

use. The Agency’s position on preemption is

consistent with the longstanding health and safety

requirements imposed by the Federal pesticide

laws. It also reaffirms the longstanding position

that FIFRA, which establishes a stringent national

regulatory program, is the guiding and preeminent

regulatory system.

Press Release, Environmental Protection Agency (Oct. 6, 2003)

(quoted in part in Mary Beth Polley, EPA: FIFRA Preempts

Labeling-Related Tort Lawsuits, 31 Pesticipe & Toxic CHEM. News

20 (Oct. 13, 2003)).

J. Petitioners Either Flatly Misstate The Law Or

Grossly Exaggerate Their Arguments That A

Conflict In Lower Court Authority Exists Requiring

Resolution By This Court.

1. Petitioners misstate the law by arguing that the

D.C. Circuit’s obsolete and repudiated Ferebee

decision represents an inter-circuit conflict.

Petitioners misstate the law by arguing that the District

of Columbia Circuit's obsolete decision in Ferebee v. Chevron

Chem. Co., 736 F.2d 1529 (D.C. Cir. 1984), demonstrates a conflict

between that Circuit and its nine sister Circuits that, since

Cipollone, have enforced FIFRA’s express preemption clause.

See Pet. at 3 n.1; 13; 19-20. Ferebee was discussed in Cipollone

itself (505 U.S. at 536-37), but a majority of the Court rejected

Ferebee’s anti-preemption thesis, holding it to be “at odds with

the plain words of the 1969 Act and with the general

understanding of common-law damages actions.” 505 U.S. at

521 (plurality opinion); id. at 548-49 (Scalia, J.). Petitioners’

discussion of Ferebee collides directly with Cipollone’s majority

and the massive weight of post-Cipollone authority:

Ferebee’s fundamental thesis — that liability

under state law for failure to warn is not a

requirement for labeling or packaging different

from that required under FIFRA — has been

rejected by the federal courts since Cipollone as

“sophistry” and “silly,” and the attempted

distinction has been characterized as “illusory.”

Etcheverry, 993 P.2d at 371-72 (collecting authorities, internal

citation omitted).

Petitioners compound their error by stating that “[t]he

Ferebee opinion has never been revisited by the [D.C. Circuit]

court, ...” Pet. at 20. This is simply not true.

Although the District of Columbia Circuit has not

expressly overruled Ferebee, it has expressly

acknowledged that Cipollone repudiated its central

premise by “explaining that damage actions can

be used to enforce state regulations as effectively

as other forms of preventive relief and thus damage

actions must be preempted where positive

Se ee i ee er va

enactments are preempted ... .” (Waterview

Management Co. v. F.D.1.C. (D.C. Cir. 1997) 105 F.3d

696, 699 [summarizing Cipollone’s holding]).

Etcheverry, 993 P.2d at 372 (alterations original).

2. Petitioners misstate the law by arguing that a

conflict has arisen between the state and federal

courts in New York since this Court’s Medtronic

decision.

Petitioners also flatly misstate the law when they argue

that a conflict between the state and federal courts in New

York has emerged because of Medtronic, Inc. v. Lohr, 518 US.

470 (1996). See Pet. at 19-21; id. at 27 (citing Tyler v. Dow Chem.

Co., Inc., 683 N.Y.S.2d 619 (N.Y. App. Div. 1998), and Mann v.

no Anderson Prods., Inc., 676 N.Y.S.2d 658 (N.Y. App. Div.

1998)).

First, neither the Tyler nor Mann court even mentioned

Medtronic. Second, the Tyler court expressly held that

“plaintiffs’ allegations concerning the failure to provide

additional or different warnings than those contained on the

label are preempted by FIFRA.” 683 N.Y.S.2d at 621 (citation

omitted). Similarly, the Mann court agreed that product

manufacturers are entitled to FIFRA preemption, but held that

Anderson, the employer of plaintiff’s mother, had no standing

to assert that defense under the specific facts alleged. See 676

N.Y.S.2d at 660 (“The complaint in Warner was directed solely

at the manufacturers, who relied successfully on the FIFRA

labeling preemption. Although Union Carbide [the

manufacturer] fits fully within the Warner holding and the

FIFRA labeling preemption, we conclude, for the reasons that

follow, that Anderson does not.”). Third, New York’s state

courts have expressly rejected the notion that Medtronic alters

the FIFRA preemption analysis. Sherman v. Claire Mfg. Co., 657

N.Y.S.2d 453, 454 (N.Y. App. Div.) (FIFRA precedent “not

inconsistent with . .. Medtronic”), appeal dismissed in part, denied

in part, 686 N.E.2d 1361 (N.Y. 1997). See also Ell v. S.E.T.

— Design, Inc., 729 N.Y.S.2d 515, 517 (N.Y. App. Div.

Petitioners’ argument that a conflict has emerged between

the federal and state courts in New York since Medtronic,

therefore, is simply false. Compare Williams v. Dow Chem. Co.,

255 F. Supp. 2d 219, 228 (S.D.N.Y. 2003) (“Defendants

convincingly argue that common law tort claims based on

‘fraudulent omission,’ ‘fraudulent concealment or ‘failure to

warn’ are preempted by FIFRA.”) with Tyler, 683 N.Y.S.2d at

621, and Ell, 729 N.Y.S.2d at 517.

3. Petitioners cannot rely on the Arkansas

Supreme Court's obsolete decision in Alter to

support their “conflict” argument.

Petitioners cannot rely on the Arkansas Supreme Court

decision in Ciba-Geigy Corp. v. Alter, 834S.W.2d 136 (Ark. 1992),

to bolster their exaggerated claims of conflict. See Pet. at 6, 21.

The Arkansas Supreme Court in Alter relied on Ferebee's

holdings and delivered its decision a scant twenty-eight days

before this Court issued its seminal decision in Cipollone, in

which a majority of this Court, as demonstrated above, flatly

rejected Ferebee’s anti-preemption thesis. There is every reason

to believe, therefore, that the Arkansas Supreme Court is ready

to revisit its Alter decision in light of Cipollone and its FIFRA-

related progeny. See Goforth v. Smith, 991 S.W.2d 579, 584 (Ark.

1999) (“In Cipollone .. . the Supreme Court wrote ‘[A]t least

since Erie R. Co. v. Tompkins . ...we have recognized the phrase

‘state law’ to include common law as well as statutes and

regulations.’”) (original brackets).

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

DeaN T. BARNHARD JosePH R. ALBERTS

Counsel of Record Dow AcroSciences LLC

Barnes & THORNBURG 9330 Zionsville Road

11 South Meridian Street Building 308-1B

Indianapolis, Indiana 46204 Indianapolis, Indiana 46268

(317) 236-1313 (317) 337-4837

Attorneys for Respondent

PI re “ Pe PIE a Pee ee

Ot a Ler

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.