# Opposition Brief — Bates v. Dow Agrosciences LLC

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0709%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 431

## 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,
V.

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

ee

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

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

I.

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

10

12

15

18

Conclusion

iv

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. ............

1.

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

25

28

29

30

TABLE OF CITED AUTHORITIES

P
Cases: “ee
Ackerman v. Am. Cyanamid Co., 586 N.W.2d 208
CREED caccnseccenscdénccusdcisonsacsess 17, 20
Ackles v. Luttrell, 561 :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).

3

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.

4

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.

6

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).

7

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.

8

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)

9

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.

10

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

11

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.

12

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.

14

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.

15

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 «
al

17

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).

18

(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.”).

19

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)

20

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.

21

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]

22

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)

23

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)

24

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.

25

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

26

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.

27

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)).

28

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

we

29

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.,

30

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0709%3A03. Public record. Not legal advice.