Amicus Curiae 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 Anited States

DENNIS BATES, et al.,

Petitioners,

Vv.

Dow AGROSCIENCES, LLC,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF E.I. DU PONT DE NEMOURS AND

COMPANY, MONSANTO COMPANY, AND

SYNGENTA CROP PROTECTION, INC., AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

ViET D. DINH

Counsel of Record

BRIAN A. BENCZKOWSKI

BANCROFT ASSOCIATES PLLC

2121 Bancroft Place, N.W.

Washington, D.C. 20008

(202) 234-0090

November 24, 2004 Counsel for Amici

—_—————————

WitSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WasHinGTON, D.C. 20001

QUESTION PRESENTED

Whether the Federal Insecticide, Fungicide, and Rodent-

icide Act (FIFRA), 7 U.S.C. §§ 136 ef seq., preempts

petitioners’ state tort claims alleging that the application of

respondent’s herbicide damaged petitioners’ peanut crops.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED...............c.cccccscrssscsessesseeseseees

TABLE OF AUTHORITIEG............:cccccssssessesseeseeesensees

INTEREST OF AMICI CURIAE .........cccccceeseeseeeeeeeeeeeees

PETITIONERS MISCONSTRUE AND

THUS ASCRIBE UNDUE WEIGHT TO THE

PRESUMPTION AGAINST PREEMPTION...

A. Ascribing Dispositive Weight to a Pre-

sumption Against Preemption Would

Upend Established Principles of Constitu-

GSES GD ccnenensstessnsssereeeeennee

B. Any Background Assumption of Non-

Preemption is Contradicted by the History

of Significant Federal Presence in

FIFRA EXPRESSLY PREEMPTS COMMON

LAW DAMAGE CLAIMS RELATING TO

LABELING OR PACKAGING. .............cccc0000:

A. FIFRA’s Preemption of State Law “Re-

quirements” Includes Common Law

B. Whether the EPA Actually Evaluates

Product Efficacy is Irrelevant to the

Interpretation of Section 136v(b), Which

Turns on Whether Product Efficacy is a

ao f& N=

TABLE OF AUTHORITIES

CASES Page

American Cyanamid Co. v. Geye, 79 S.W.3d

21 (Tex. 2002), cert. denied, 539 U.S. 969

en 4, 23

Atascadero State Hospital v. Scanlon, 473 U.S.

Be GD cerentecnnineemtememenes 11

Cipollone v. Liggett Group, Inc., 505 U.S. 504

ee passim

~ Dellmuth v. Muth, 491 U.S. 223 (1989)... 11

Etcheverry v. Tri-Ag Service, Inc., 22 Cal. 4th

ee ee 26

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

GI vanensensnesansinnpmanseanmnenstngenneiemenennnnin 24

Gregory v. Ashcroft, 501 U.S. 452 (1991)............ 7

Hines v. Davidowitz, 312 U.S. 52 (1941).............. 6, 13

Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000)... 13

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

New York v. United States, 505 U.S. 144 (1992).. 10

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

I OO ee 26

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

TN l

Ruckelshaus v. Monsanto Co. 467 U.S. 986

I ncennsnsnnnenenannnmnnimmnanemmnmanen 2

San Diego Bldg. Trades Council v. Garmon, 359

ee A entmeninimemmmnienn 18

Sprietsma v. Mercury Marine, 537 U.S. 51

FEIT ccuvenmsasnnnevermemanntetmememenmenmans 21

Stearns Elec. Paste Co. v. EPA, 461 F.2d 293

oo | 15

United States v. Locke, 529 U.S. 89 (2000) .......... 1,6

United States v. Lopez, 514 U.S. 549 (1995) ........ 14

— a Ar cal

TABLE OF AUTHORITIES—Continued

Page

Wickard v. Filburn, 317 U.S. 111 (1942).............. 14

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

SIE (OPIS Pcccresecessesesssssncscscensseneneemencsssossonssseesnene 6, 11

CONSTITUTIONAL PROVISIONS

FE 8 ee 7,9, 11, 12

EE 7

STATUTES, RULES AND REGULATIONS

Fre ie CN ntciienitatntnisneicentisintninsiennaenienes 2, 3,17

ee te ee cnrcnniennsinnennsnitiiamiinsntiniesins 3, 22

Fee Oe BIT crrsrnentneinicensememnnnesenemniaten 17, 22

I 23

MR SE 26

0 ee ntintntisnnenennrernnnnemitnrmineaiee 3,21

Oeste ME intinesnernnsnnreneneinininnennmmmnseasinn passim

ee Oe Ce irrrernerctanimnnnteninennsimenins 23

GO CPR. § 1SC.GOBIO 1) ..ncccccccccccccscccccccesccssscesees 3, 23

SO 23

Act of July 22, 1954, Pub. L. No. 83-518, 68

Be, See Ee nicetcenenvennsianininannitipenpitininiipietits 15

Agricultural Adjustment Act, Pub. L. No. 73-10,

A Se iccinnsitenntntimmpenaieneiesinnnies 14

Agricultural Marketing Act, Pub. L. No. 71-10,

Ge Gt nncenctictansionimnnuniomaunsesineane 14

Agricultural Marketing Act, Pub. L. No. 79-733,

Sy ennensvenenemtinnnntnnciepemneces 14

Department of Agriculture Act, 37th Cong. Ch.

a 13

Federal Environmental Pest Control Act, Pub. L.

No. 92-516, 86 Stat. 973 (1972) ........cccccceeseeees 2, 3, 15

Hatch Act, 49th Cong., Ch. 314, 24 Stat. 441

rae rcresenstnipnasecresaninemieintanneintenamitaninineges 14

TABLE OF AUTHORITIES—Continued

Morrill Act, 37th Cong. Ch. 130, 12 Stat. 503

Public Health Cigarette Smoking Act, Pub. L.

No. 91-222, 84 Stat. 87 (1969) ............ccccccceeeeees

Smoot-Hawley Tariff Act, Pub. L. No. 71-361,

RE EN

MISCELLANEOUS

BRUCE L. GARDNER, AMERICAN AGRICULTURE IN

THE TWENTIETH CENTURY (2002)...............0cc00008

ELLIOT’S DEBATES ON THE FEDERAL CON-

Howard B. Pickard, Price and Income Adjust-

ment Programs, in | AGRICULTURAL LAw 3

(John H. Davidson, ed. 1981) .............:ccccceceeceees

Louise Weinberg, The Federal-State Conflict of

Laws: “Actual” Conflicts, 70 Tex. L. REV.

a wnsctsicciiptiannntsiinsiupiaenainepsinmiienentiaeennnies

THE RECORDS OF THE FEDERAL CONVENTION OF

1787 (M. Farrand rev. ed. 1966) ...................00+.

INTERESTS OF AMICI CURIAE '

Amici curiae E.1. Du Pont de Nemours and Company,

Monsanto Company, and Syngenta Crop Protection, Inc.,

manufacture products whose labels are regulated by the

Environmental Protection Agency (EPA) under the Federal

Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7

U.S.C. §§ 136 et seq. Amici frequently face lawsuits relating

to the content of their EPA-approved labels, which are

predicated on state statutory and common law theories of

liability. Such lawsuits, if adjudicated under state law, would

create a conflicting state-by-state patchwork of labeling and

packaging requirements and thus undermine the uniform

federal regulatory regime Congress created in FIFRA. Amici

have a significant interest in the proper interpretation of

FIFRA’s express preemption provision to further the explicit

statutory goal of uniformity.

Further, as commercial participants in a national market

dependent upon regulatory consistency and uniformity, amici

have a significant interest in the proper development and

clear articulation_of the general law of preemption. In

particular, amici believe that the so-called presumption

against preemption applies only in instances where “Congress

has legislated in a field which the States have traditionally

occupied,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947), and not “where there has been a history of

significant federal presence.” United States v. Locke, 529

U.S. 89, 108 (2000). Where the assumption applies that

Congress does not lightly displace historic state police power,

amici seek to ensure that it is given the proper weight as a

' Petitioners and Respondent have consented to the filing of this brief.

Consistent with Rule 37.6, this brief is not authored in whole or in part

by counsel for any party. No person, other than amici or their counsel,

has made a monetary contribution to the preparation or submission of

background interpretive principle and not as a dispositive

presumption or clear statement rule.

STATEMENT OF THE (ASE

Amici adopt the statement of the case presented in the Brief

for Respondent. For the Court’s convenience, amici set forth

below the facts most salient to the analysis that follows.

Federal regulation of agricultural chemicals began with the

Insecticide Act of 1910. Ch. 191, 36 Stat. 331. In 1947,

Congress replaced that statute with FIFRA and required

federal registration of all pesticides. FIFRA, ch. 125, §§ 3-4,

61 Stat. 166-67 (1947). FIFRA also gave the Secretary

of Agriculture discretion to ask an applicant to submit a

description of the tests and results supporting the information,

claims and directions for use on each pesticide’s label. See

§ 4a(4), 61 Stat. 167.

The Federal Environmental Pesticide Control Act of 1972,

Pub. L. No. 92-516, 86 Stat. 973, revised FIFRA in light of “a

growing perception that the existing legislation was not equal

to the task of safeguarding the public interest.” Ruckelshaus

v. Monsanto Co. 467 U.S. 986, 991 (1984). The 1972

amendment directed the EPA to register a pesticide if it

determined that:

(A) its composition is such as to warrant the proposed

claims for it;

(B) its labeling and other material required to be sub-

mitted comply with the requirements of this subchapter;

sonable adverse effects on the environment; and

(D) when used in accordance with widespread and com-

monly recognized practice it will not generally cause

unreasonable adverse effects on the environment.

7 U.S.C. § 136a(c)(5). As in the original FIFRA, the 1972

amendments did not require the EPA to collect efficacy or

other data in support of product registration. Rather, it clari-

fied the EPA’s discretion to “specify the kinds of information

which will be required to support the registration of a

pesticide.” Pub. L. No. 92-516, § 3(c), 86 Stat. 973, 979-80

(1972). The EPA then required applicants to submit data on

nearly every aspect of their pesticide. See 40 C.F.R. Pt. 158.

Responding to EPA concerns that pre-registration evalu-

ation encumbered too much agency resources, Congress

amended FIFRA in 1978 to provide the EPA with direct

authority to waive review of pesticide efficacy data during the

initial registration process. 7 U.S.C. § 136a(c)(5). How-

ever, because the 1978 Amendments did not alter the

underlying statutory requirement that a pesticide’s “compo-

sition is such as to warrant the proposed claims for it,” 7

U.S.C. § 136a(c)(5)(A), “each registrant must ensure through

testing that his products are efficacious when used in

accordance with label directions and commonly accepted pest

control practices. The Agency reserves the right to require,

on a case-by-case basis, submission of efficacy data for any

pesticide product registered or proposed for registration.” 40

C.F.R. § 158.640(b)(1).

FIFRA expressly grants states the authority to regulate the

sale or use of federally registered pesticides within their

jurisdiction. “A State may regulate the sale or use of any

federally registered pesticide or device in the State, but only

if and to the extent the regulation does not permit any sale or

use prohibited by this subchapter.” 7 U.S.C. § 136v(a).

However, to ensure national uniformity in the form and

content of pesticide labels, FIFRA expressly limits state

authority to regulate pesticide labeling or packaging:

Uniformity. Such 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.

7 U.S.C. § 136v(b).

After a seven-year application process, which included

submission of scientific data on efficacy, EPA conditionally

registered Strongarm on March 8, 2000. JA 63-93. Peti-

tioners, West Texas peanut farmers, used Strongarm and

experienced poor crop yields. They sent demand letters to

Dow AgroSciences alleging claims under common law and

the Texas Deceptive Trade Practices Act, Tex. Bus. & Com.

Code §§ 17.01 et seg. JA 30-40.

Dow sought a declaratory judgment in federal district court

that FIFRA and the Texas Uniform Commercial Code barred

the farmers’ state law claims. JA 13-23. The district court

granted Dow’s summary judgment motion, holding that

section 136v(b) expressly preempted all but one of the

farmers’ state law claims because those claims constituted

state requirements for labeling and packaging in addition to

those required under FIFRA. Pet. App. 21a-3 la.

The Fifth Circuit affirmed, holding that it is “well-

established” that the phrase “any requirements” in section

136v(b) encompasses both positive enactments and state

common law. Pet. App. Ila. Noting that the plain text of

this provision refers to the statutory requirements of FIFRA

and not EPA regulatory actions, the Court rejected

Petitioners’ argument that their claims are not preempted

because EPA does not require data on and evaluate product

efficacy prior to registration. Pet. App. 12a-l3a. The Fifth

Circuit distinguished American Cyanamid Co. v. Geye, 79

S.W.3d 21 (Tex. 2002), as dealing only with the question of

conflict preemption and not whether section 136v(b)’s

express preemptive scope includes product effectiveness

claims. Pet. App. 13a.

SUMMARY OF ARGUMENT

Petitioners misconstrue and give undue weight to the so-

called presumption against preemption. Their argument that

the presumption mandates a narrow construction of section

136v(b) and the term “requirements” rests on a misunder-

standing of the Distinction between preemption and

supremacy and the relationship between express and conflict

preemption. The Constitution provides a straightforward

structure governing the relationship between federal and state

regulatory authority. Any attempt to convert the presumption

against preemption from a background assumption to a

clear statement rule would upend that structure, particularly

where there has been a history of significant federal regu-

latory presence.

For nearly a century, Congress has regulated pesticide

efficacy and labeling. Against this backdrop of pervasive

federal regulation, the interpretive principle shifts—certainly

not to disfavor, and more likely to prefer, federal displace-

ment of state law.

Absent an artificial presumption, application of ordinary

principles of statutory construction demonstrates that Con-

gress intended to preempt state common law claims relating

to the labeling of pesticides subject to FIFRA’s requirements.

The Court has twice held that use of the term “requirements”

in express preemption provisions includes state common law

tort actions. There is no reason to believe that the term has a

different meaning in section 136v(b) of FIFRA.

It is irrelevant to the interpretation of section 136v(b)

whether the EPA actually evaluates product efficacy before

registration. Instead, the analysis turns on whether product

efficacy is a requirement under FIFRA. The 1978 FIFRA

amendments did not rescind the efficacy requirement, but

simply authorized the EPA not to require data submission or

to evaluate product efficacy prior to registration. Therefore,

product efficacy is still a requirement under FIFRA and,

accordingly, falls within FIFRA’s preemptive scope.

ARGUMENT

I. PETITIONERS MISCONSTRUE AND THUS

ASCRIBE UNDUE WEIGHT TO THE PRE-

SUMPTION AGAINST PREEMPTION.

Petitioners’ argument—that the so-called presumption

against preemption dictates that the term “requirements” and

the preemptive scope of section 136v(b) be narrowly

construed to exclude state common law tort claims, Pet. Br.

21—rests on a misconception of the distinction between

preemption and supremacy and the relationship between

express and conflict preemption.

Petitioners’ argument would convert a background as-

sumption in statutory construction into a clear statement rule,

without any constitutional or logical basis. To the contrary,

“[{t]here is not—and from the very nature of the problem there

cannot be—any rigid formula or rule which can be used as a

universal pattern to determine the meaning and purpose of

every act of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67

(1941). Although the Court has often repeated the

assumption that Congress does not intend lightly to displace

the “historic police powers of the States,” the weight of this

assumption turns on whether “Congress has legislated in

a field which the States have traditionally occupied.”

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

Thus, this assumption does not hold “where there has been a

history of significant federal presence.” United States v.

Locke, 529 U.S. 89, 108 (2000).

Over the course of the last century, the Federal government

has pervasively regulated all facets of agricultural production.

That regulatory framework includes FIFRA, a “compre-

hensive regulatory statute.” Wisconsin Pub. Intervenor v.

Mortier, 501 U.S. 597, 601 (1991) (quoting Ruckleshaus, 467

U.S. at 991). Against this “history of significant federal

presence,” Locke, 529 U.S. at 108, particularly with regard to

pesticide labeling, Mortier, 501 U.S. at 613, Petitioners’

insistence that the presumption against preemption favors

a narrow reading of the preemptive scope of FIFRA

rings hollow.

A. Ascribing Dispositive Weight to a Presumption

Against Preemption Would Upend Established

Principles of Constitutional Supremacy.

Petitioners’ insistence that a presumption against pre-

emption dictates a narrow interpretation of section 136v(b)

rests on a fundamental misconception of the distinction

between preemption and supremacy.

The Constitution provides a straightforward structure gov-

ering the scope and effect of federal and state legislative

authority: Article I, section 8 enumerates the powers of

Congress; Article I, section 9 limits the powers of Congress;

Article I, section 10 limits the powers of the states; and the

Tenth Amendment reserves to the states the powers not

delegated to Congress and prohibited to the states. Im-

portantly, clause 2 of Article VI, the Supremacy Clause,

provides that congressional enactments consistent with the

Constitution “shall be the supreme Law of the Land.”

Although the Supremacy Clause prescribes that congres-

sional enactments trump conflicting state law and thus gives

Congress “an extraordinary power in a federalist system,”

Gregory v. Ashcroft, 501 U.S. 452, 460 (1991), the Clause

itself does not authorize Congress to preempt state laws. The

Supremacy Clause simply specifies a constitutional choice of

law rule, one that prefers valid federal law over conflicting

state law. If the clause were meant to be an affirmative grant

of congressional power, it would reside in the metropolis of

congressional power, Article I, section 8, rather than in the

Article VI suburbs.

The history of the Constitution confirms the point. In the

decade prior to the Constitutional Convention, internecine

disputes in trade and commerce among the states underscored

the need for an effective national government with the power

to regulate interstate commerce. In 1786, delegates met at

Annapolis, Maryland, to discu a uniform federal system of

commercial regulation. The Annapolis Convention convinced

the participants, including James Madison and Alexander

Hamilton, that “the power of regulating trade is of such

comprehensive extent, and will enter so far into the general

system of the federal government, that to give it efficacy, and

to obviate questions and doubts concerning its precise nature

and limits, may require a correspondent adjustment of other

parts of the federal system.” | ELLIOT’S DEBATES ON THE

FEDERAL CONSTITUTION 118 (2d ed. 1907). Recognizing the

need to balance state sovereignty with the necessary powers

of an effective national government, the Annapolis partici-

pants recommended to Congress a general convention to

remedy “the important defects in the system of the federal

government.” /d.

Against that backdrop, the Framers in 1787 considered two

different approaches to federal and state legislative authority.

The Virginia Plan included among its proposed congressional

powers the broad authority “to negative all laws passed by the

several States, contravening in the opinion of the National

Legislature the articles of the Union.” 1 THE RECORDS OF

THE FEDERAL CONVENTION OF 1787, at 21 (M. Farrand rev.

ed. 1966) (hereinafter “FARRAND”). The alternative New

Jersey (or Small State) Plan, on the other hand, did not

include such authority among the powers of Congress, but

rather separately proposed language similar to the current

Supremacy Clause.

During the debates, Madison warned against the “pro-

pensity of the States to pursue their particular interests in

opposition to the general interest” and advocated “the

ne ee ey ee ee

negative on the laws of the States as essential to the efficacy

& security of the Genl. Govt.” 2 FARRAND at 27. Governor

Robert Morris of Pennsylvania opposed congressional power

to negative state laws, explaining that “[a] law that ought to

be negatived will be set aside in the Judiciary departmt. and if

that security should fail; may be repealed by a Nationl. Law.”

Id. at 28. The Virginia Plan was defeated by a vote of 3 to 7.

The Convention then adopted a revised version of the New

Jersey proposal almost identical to the current Supremacy

Clause. /d. at 28-29. Consistent with the New Jersey Plan’s

structure and Morris’s explanation, the adopted text does not

mention any affirmative authority of Congress, but simply

sets forth the hierarchy between federal and state laws.

Any power to preempt state law, therefore, is conferred not

by the Supremacy Clause, but by the affirmative grant of

congressional powers under Article I, section 8. For example,

should Congress legislate pursuant to its powers under the

Commerce Clause and wish to include a provision expressly

preempting certain state laws, the authority for the pre-

emption provision comes from the Commerce Clause, with

help from the Necessary and Proper Clause. The Supremacy

Clause then makes clear that the preemption provision trumps

state laws that conflict with it.

Accordingly, if there are questions of constitutional policy

in preemption—‘“the Danger . . . that the national, would

swallow up the State Legislatures,” | FARRAND at 160, and

the like—the framers answered them with the specific

enumerations and limitations of federal legislative power in

Article | and the Supremacy Clause in Article VI. To find in

this structure a dispositive presumption against preemption,

as Petitioners urge the Court to do, is to rewrite the balance

envisioned by the Framers—a balance that, it bears re-

minding, Madison and others thought should have been

weighted even more in favor of Congress.

Preemption is not a substantive power of Congress, but

rather a method of regulation to further some other sub-

stantive congressional authority. In this regard, true conflict

preemption is actually not preemption at all, but the

paradigmatic operation of the Supremacy Clause to resolve an

actual conflict between state and federal law, where it is

physically impossible to comply with both federal and state

requirements. See Louise Weinberg, The Federal-State

Conflict of Laws: “Actual” Conflicts, 70 TEx. L. REV. 1743,

1751 (1992).

Express preemption is simply a type of true conflict pre-

emption, or core supremacy. In addition to any substantive

regulatory requirements, Congress may choose further to

include a provision preempting all state laws within a defined

scope. The Supremacy Clause then makes clear that the

preemption provision, like any other provision of federal law,

takes precedence over conflicting state laws. All state laws

within the scope of the express preemption provision are by

definition in conflict with it, and the latter is supreme.

Section 136v(b) provides that States “shall not impose or

continue in effect any requirements for labeling or packaging

in addition to or different from those required under this

subchapter.” Congress cannot commandeer State legislative

processes, see New York v. United States, 505 U.S. 144, 161

(1992), and thus this provision does not literally prohibit

states from adopting requirements for labeling and packaging.

Rather, if a State adopts labeling and packaging requirements

that are in addition to or different from those required by

FIFRA, such requirements would conflict with section

136v(b) and the Supremacy Clause resolves the conflict in

favor of FIFRA.

In this and other express preemption cases, therefore, the

work of the Supremacy Clause is straightforward. It gives

effect to the express preemption clause and tells state and

federal judges to prefer the clause to all contrary state laws.

The judicial task is likewise limited: to interpret the express

preemption clause and determine whether the state law at

issue falls within the preemptive scope. This task does not

call for special Supremacy Clause or preemption jurispru-

dence. It is garden-variety statutory construction.

Statutory construction is, by its nature, contextual. It is

therefore natural for the Court to assume that Congress does

not lightly displace the “historic police powers of the States,”

where “Congress has legislated in a field which the States

have traditionally occupied.” Medtronic, 518 U.S. at 485

(quoting Rice, 331 U.S. at 230). Thus, the Court in Mortier

held that Congress’s “[mJere silence” with respect to local

governments (as opposed to States) was “inadequate to

convey an express preemptive intent.” Mortier, 501 U.S.

at 607.

But Petitioners’ reliance on Mortier in this case is wholly

misplaced. Here, there is no silence: Congress articulated its

“express preemptive intent” in section 136v(b). The question,

rather, is the scope of such intent and the specific meaning of

the word “requirements.” By insisting that a dispositive

presumption against pre-emption works to change the natural

and established meaning of “requirements,” and to narrow

artificially the scope of the express pre-emption provision,

Petitioners would urge on this Court a clear statement rule of

statutory construction.

There is no constitutional or logical support for such a rule.

All other narrow construction or clear statement rules are

predicated on a constitutional concern independent of the

Supremacy Clause. For example, the presumption against

congressional abrogation of state sovereign immunity and the

attendant requirement of an “unmistakably clear” legislative

Statement abrogating such immunity derives from the

Eleventh Amendment. Dellmuth v. Muth, 491 U.S. 223, 230

(1989); Atascadero State Hospital v. Scanlon, 473 U.S. 234,

242 (1985). Similarly, the clear statement rule of Gregory v.

Ashcroft, 501 U.S. 452 (1991), sprouts from the respect for

State sovereign prerogative protected by the Tenth Amend-

ment. Setting judicial qualifications “is a decision of the

most fundamental sort for a sovereign entity,” even though

the Supremacy Clause permits Congress to “impose its will

on the States.” Gregory, 501 U.S. at 460.

Indeed, the Supremacy Clause evinces, if anything, a pre-

sumption favoring pre-emption. Without an independent

constitutional basis, such as the Tenth or Eleventh Amend-

ments, there is nothing to counterbalance the Constitution’s

express preference for federal supremacy. Absent a coun-

tervailing constitutional concern, finding a clear statement

rule against preemption in the Supremacy Clause is akin to

conjuring from the Eleventh Amendment a presumption

favoring federal jurisdiction over suits against States.

As a practical matter, ascribing such dispositive weight to

the presumption against preemption as Petitioners suggest

would render impractical any use of express preemption and

subvert the structural relationship between preemption and

supremacy and between conflict and express preemption.

“The statute that says anything about pre-emption must say

everything; and it must do so with great exactitude, as any

ambiguity concerning its scope will be read in favor of

preserving state power. If this is to be the law, surely only

the most sporting of Congresses will dare say anything about

preemption.” Cipollone v. Liggett Group, Inc., 505 U.S. 504,

548 (1992) (Scalia, J., concurring in part, dissenting in part).

B. Any Background Assumption Against Preemp-

tion is Contradicted by the History of Significant

Federal Presence in Regulating Agricultural

Production and Pesticide Marketing.

Because preemption analysis is, at bottom, an exercise in

Statutory construction, “{t}here is not—and from the very

nature of the problem there cannot be—any rigid formula or

rule which can be used as a universal pattern to determine the

meaning and purpose of every act of Congress.” Hines v.

Davidowitz, 312 U.S. 52, 67 (1941). Rather, courts inter-

preting a preemption provision, like any other statutory

provision, must look to the background against which

Congress legislates. See Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 94 (2000) (Stevens, J., dissenting) (“Whenever Con-

gress passes a statute, it does so against the background of

state law already in place; the propriety of taking national

action is thus measured by the metric of the existing state

norms that Congress seeks to supplement or supplant.”).

Although this Court does not lightly assume that Congress

intended to displace the “historic police powers of the States,”

the weight of this assumption naturally turns on whether

“Congress has legislated in a field which the States have

traditionally occupied.” Medtronic, 518 U.S. at 485 (quoting

Rice, 331 U.S. at 230). Stated conversely, “an ‘assumption’

of non-preemption is not triggered when the State regulates in

an area where there has been a history of significant federal

presence.” Locke, 529 U.S. at 108 (citations omitted).

Agricultural production and pesticide labeling are areas

where there has been a history of significant federal presence.

As President Washington stated in his 1796 annual address to

Congress, “It will not be doubted that with reference either to

individual or national welfare agriculture is of primary

importance .. . ._ Institutions for promoting it grow up,

supported by the public purse; and to what object can it

be dedicated with greater propriety?” BRUCE L. GARDNER,

AMERICAN AGRICULTURE IN THE TWENTIETH CENTURY

176 (2002).

created the Department of Agriculture, 12 Stat. 387 (1862),

and passed the Morrill Act, 12 Stat. 503 (1862), which

established the system of land-grant universities that still

persists to this day. And in 1887, Congress passed the Hatch

Act, 24 Stat. 441 (1887), which provides federal support for

state agricultural experiment stations.

When the prosperity of the American farm evaporated after

World War I, see GARDNER, supra, at 1, Congress responded

with a host of legislative elixirs in an attempt to remedy the

problem, including: price controls, Agricultural Marketing

Act of 1929, 46 Stat. 11, increased tariffs, Smoot-Hawley

Tariff Act, 46 Stat. 686 (1930), and supply-control measures,

Agricultural Adjustment Act of 1933, 48 Stat. 31. See also

Howard B. Pickard, Price and Income Adjustment Programs

in 1 AGRICULTURAL LAW 3 (John H. Davidson, ed. 1981)

(“Modern farm legislation had its origins from the depression

years of the early 1930s.”). It was also during these years that

Congress began to assert the full breadth of its Article I,

section 8 powers, oft-times in the name of the farm. For

example, the Agricultural Adjustment Act of 1938, upheld in

Wickard v. Filburn, 317 U.S. 111 (1942), stands as “perhaps

the most far reaching example of Commerce Clause authority

over intrastate activity.” United States v. Lopez, 514 US.

549, 560 (1995).

In addition to the broad price-stabilizing programs of the

New Deal, Congress also enacted legislation affecting almost

every aspect of the farm. See, e.g., Agricultural Marketing

Act of 1946, Pub. L. No. 79-733, 60 Stat. 1082, codified, as

amended, at 7 U.S.C. § 1621 ef seg. (providing for the

inspection, grading, packaging and labeling of agricultural

products). Pesticide regulation is no exception.

For nearly a century, Congress has regulated pesticide

efficacy and labeling, beginning with the Insecticide Act

of 1910. Ch. 191, 36 Stat. 331. In 1947, Congress replaced

that regime with FIFRA. Both statutes were aimed at “pro-

tecting consumers from the purchase of ineffective prod-

ucts. However, the coverage of [FIFRA] was substantially

broadened, a purpose to protect the public from the hazards

associated with the use of economic poisons was imple-

mented, and, for the first time, all economic poisons were

required to be registered with the Secretary of Agri-

culture.” Stearns Elec. Paste Co. v. EPA, 461 F.2d 293, 302

(7th Cir. 1972).

In 1954, Congress further asserted primacy over agricul-

tural production and pesticide regulation when it amended the

Federal Food, Drug, and Cosmetic Act to authorize the

Secretary of Health, Education and Welfare to establish

tolerances with respect to pesticide use on raw agricultural

products. Pub. L. No. 83-518, 68 Stat. 511 (1954). The law

specifically allowed FIFRA pesticide registrants to petition

the Secretary to establish a tolerance level for their pesticides,

or exempt them from the tolerance requirement. The Act

required petitions to contain data showing, among other

things, “full reports of investigations made with respect to the

safety of the p ~sticide chemical.” /d. at § 408(d).

Congress amended FIFRA in 1972 to provide increased

authority to EPA and added the preemption provisions

codified at 7 U.S.C. § 136v. See Federal Environmental

Pesticide Control Act, Pub. L. No. 92-516, § 24, 86 Stat. 973,

997 (1972). These amendments further strengthened FIFRA

as “a comprehensive regulatory statute,"” Mortier, 501 U.S. at

601 (quoting Monsanto, 467 U.S. at 991).

Against this backdrop, it is not reasonable to assume that

Congress intended to tread lightly in preempting state law.

Such an assumption may well hold where “Congress has

legislated in a field which the States have traditionally

occupied.” Medtronic, 518 U.S. at 485 (quoting Rice, 331

U.S. at 230). In such cases, state regulation is primary, and

Congress is assumed to act only interstitially. But where, as

in agricultural production, Congress has legislated pervas-

ively, the background interpretive principle shifts—certainly

not to disfavor, and more likely to prefer, federal dis-

placement of state law.

Put another way, it would seem odd in the very least to

assume that, after more than sixty years of regulating

pesticide labeling, Congress intended generally to protect

state regulatory authority in 1972 when it further “‘trans-

formed FIFRA from a labeling law into a comprehensive

regulatory statute.” Mortier, 501 U.S. at 601 (quoting

Monsanto, 467 U.S. at 991).

The proper application of the presumption against pre-

emption is where Congress has only acted interstitially to

supplement State regulation. The long and significant federal

history in regulating agricultural production and pesticide

marketing counsels against applying the presumption here.

Instead, the Court should apply everyday principles of

Statutory construction in a straightforward manner, without

utilizing an artificial thumb-on-the-scale presumption.

Il. FIFRA EXPRESSLY PREEMPTS COMMON

LAW DAMAGE CLAIMS RELATING TO

LABELING OR PACKAGING.

The plain text of FIFRA demonstrates that Congress

intended to displace state common law actions relating to

labeling or packaging of products subject to FIFRA’s

Statutory requirements. This Court has twice held that the

term “requirements” in express preemption provisions in-

cludes common law tort actions. See Cipollone, 505 U.S. at

521 (plurality); id. at 548-49 (Scalia, J., concurring in

judgment in part and dissenting in part); Medtronic, 518 U.S.

at 504 (Breyer, J., concurring in part and concurring in

judgment); id. at 509 (O’Connor, J., concurring in part and

dissenting in part). There is no reason to think that “re-

quirements” has a different meaning in section 136v(b). It is

of no moment that section 136v(b) relates back to section

136v(a}’s authorization of states to “regulate” and its

references to such state “regulation.” “[State] regulation can

be as effectively exerted through an award of damages as

asa’

through some form of preventive relief.” Cipollone, 50S U.S.

at 521 (quoting San Diego Bidg. Trades Council v. Garmon,

359 U.S. 236, 247 (1959)).

It is irrelevant whether the Environmental Protection

Agency has waived data requirements for, or actually

evaluates, product efficacy prior to registering a product and

approving its labeling and packaging. Section 136v(b)

prohibits state law requirements for labeling and packaging

other than “those required under this subchapter.” Under that

subchapter, section 136a(c)(7) allows EPA to conditionally

data, but only if, among other things, the pesticide’s

“composition is such as to warrant the proposed claims for it”

and if “it will perform its intended function without unrea-

sonable adverse effects on the environment.” 7 U.S.C.

§ 136a(c\5). The 1978 Amendments did not rescind or alter

the requirement that the pesticide be effective, but simply

authorized the EPA not to require data submission or to

evaluate product efficacy prior to registration. Product

efficacy is therefore still “required under this subchapter” and

within section 136v(b)’s preemptive scope, regardless of the

EPA’s decision as to whether, when, and how to monitor

compliance or enforce violations of that requirement.

A. FIFRA’s Preemption of State Law “Require-

ments” Includes Common Law Claims for

Damages.

This Court has twice held that the term “requirements” in

express preemption provisions includes common law tort

actions. See Cipollone, 505 U.S. at 521 (plurality); id. at 548-

49 (Scalia, J., concurring in the judgment in part and

dissenting in part); Medtronic, 518 U.S. at 504 (Breyer, J.,

concurring in part and concurring in the judgment); id. at 509

(O’Connor, J., concurring in part and dissenting in part).

In Cipollone, the Court interpreted the reach of the

Cigarette Labeling Act, as amended, which provided: “No

requirement or prohibition based on smoking and health 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 Act.” Public Health

Cigarette Smoking Act of 1969, Pub. L. No. 91-222, 84

Stat. 87. Much like Petitioners here, Cipollone argued that

the provision did not preempt common law actions. See

Cipollone, 505 U.S. at 521 (plurality).

Six justices explicitly rejected this contention, four of them

reasoning that “[t]he phrase ‘[n]o requirement or prohibition’

sweeps broadly and suggests no distinction between positive

law enactments and common law... .” /d. (Stevens, J., with

whom Rehnquist, C.J., White and O’Connor, J.J., joined,

writing for a plurality of the Court as to part V) (second

alteration in original); see also id. at 548-49 (Scalia, J., with

whom Thomas, J., joined, concurring in the judgment in part

and dissenting in part). Writing for the four-justice plurality,

Justice Stevens continued, “those words easily encompass

obligations that take the form of common-law rules.” /d. at

521 (plurality) (emphasis added). “The obligation to pay

compensation can be, indeed is designed to be, a potent

method of governing conduct and controlling policy.” /d.

(quoting San Diego Bldg. Trades Council, 359 U.S. at 247).

Similarly, in Medtronic five justices held that the word

“requirements,” as used in the Medical Device Amendments

to the Federal Food, Drug, and Cosmetic Act, “‘easily’”

encompassed tort actions. Medtronic, 518 U.S. at 504

(Breyer, J., concurring in part and concurring in the judg-

ment) (quoting Cipollone, 505 U.S. at 521); id. at 510-11

(O’Connor, J., with whom Rehnquist, C.J., Scalia and

Thomas, J.J., joined, concurring in part and dissenting

in part).

There is no reason to think that the term “requirements” as

used in section 136v(b) has a different meaning than in the

Cigarette Labeling Act or in the Medical Device Amend-

ments. Indeed, since Cipollone, the federal circuit courts

have been in unanimous accord: FIFRA’s preemption

provision embraces state tort actions relating to the label-

ing or packaging of pesticides.? Eighteen state supreme

courts agree.”

? Lowe's Home Cntrs., 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, 537 U.S. 949 (2002); Nathan Kimmel, Inc. v. DowElanco, 275

F.3d 1199 (9th Cir. 2002); Ruiz~-Guzman v. Amvac Chem. Corp., 243 F.3d

549 (9th Cir. 2000); Hawkins v. Leslie's Pool Mart, Inc., 184 F.3d 244

(3d Cir. 1999); Andrus v. AgrEvo USA Co., 178 F.3d 395 (Sth Cir. 1999);

Lescs v. William R. Hughes, Inc., 168 F.3d 482 (4th Cir. 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., Inc., F.3d 485, (9th Cir. 1997); Grenier

v. Vt. Log Bldgs., Inc., 96 F.3d 559 (ist Cir. 1996); Welchert v. Am.

Cyanamid, Inc., 59 F.3d 69 (8th Cir. 1995); Taylor AG Indus. v. Pure-

Gro, 54 F.3d 555 (9th Cir. 1995); 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 v. Monsanto Co., 27 F.3d 1021 (Sth Cir. 1994); Worm

v. Am. Cyanamid Co., 5 F.3d 744 (4th Cir. 1993); King v. E.1. DuPont de

Nemours & Co., 996 F.2d 1346 (ist Cir. 1993); Shaw v. Dow Brands,

Inc., 994 F.2d 364 (7th Cir. 1993); Papas v. Upjohn Co., 985 F.2d 516

(11th Cir.), cert. denied sub nom. P. v. Zoecon Corp., 510 U.S. 913

(1993); Arkansas-Platte & Gulf P’ship v. Van Waters & Rogers, Inc., 981

F.2d 1177 (10th Cir.), cert. denied sub nom. Arkansas-Platte & Gulf

P’ship v. Dow Chem. Co., 510 U.S. 813 (1993); see also Oken v.

Monsanto Co., 371 F.3d 1312 (11th Cir. 2004).

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

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

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

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

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

208 (lowa 1998); Ackles v. Luttrell, 561 N.W.2d 5730 (lowa 1997);

Notwithstanding the overwhelming weight of authority,

Petitioners point to the fact that “‘requirements’ is used 75

times in the remainder of FiFRA.” Pet. Br. at 22. “The use

of ‘requirements’ throughout FIFRA,” Petitioners argue,

“demonstrates that Congress understood labeling ‘require-

ments’ to refer only to labeling commands imposed by statute

and regulation, . . . connoting positive commands of law.” /d.

This argument is unpersuasive. The Cigarett> Labeling Act,

as amended, uses “requirements” six times in different

contexts outside the preemption provision. See 15 U.S.C.

§§ 1333, 1336, 1340. Likewise, the Medical Device Amend-

ments employ “requirement” 109 times, not counting the

preemption clause. See 21 U.S.C. §§ 351, 352, 360, 360c,

360d, 360e, 360i, 360}. Meaning matters; numbers do not.

There is likewise little merit to Petitioners’ argument that

the modifier “such” in section 136v(b) makes that clause a

Schuver v. E.l. Du Pont de Nemours & Co., 546 N.W.2d 610 (lowa

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

Jenkins v. Amchem Prods, Inc., 886 P.2d 869 (Kan. 1994), cert. denied,

516 U.S. 820 (1995); Hopkins v. Am. Cyanamid Co., 666 So. 2d 615 (La.

1996); Hochberg v. Zoecon Corp., 657 N.E.2d 1263 (Mass. 1995); Goeb

v. Tharaldson, 615 N.W.2d 800 (Minn. 2000); Eyl v. Ciba-Geigy Corp.,

650 N.W.2d 744 (Neb. 2002), cert. denied, 539 U.S. 958 (2003); Pfeifer

v. El. Du Pont de Nemours & Co., 606 N.W.2d 773 (Neb. 2000);

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

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

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

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

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

896 P.2d 673 (Wash. 1995); All-Pure Chem. Co. v. White, 896 P.2d 697

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

Gorton v. Am. Cyanamid Co., 533 N.W.2d 746 (Wis. 1995), cert. denied,

516 U.S. 1067 (1996). Although the Hawaii and Idaho Supreme Courts

agree that FIFRA preempts generally, they have held that it extends only

to label statements required by the EPA, not to statements voluntarily

furnished by the manufacturer. See Walker v. Am. Cyanamid Co., 948

P.2d 1123, 1128 (Idaho 1997); Kawamata Farms, 948 P.2d at 1080.

“subset” of section 136v(a), and thus renders “requirements”

to mean something other than its plain and accepted defi-

nition. Petitioners argue that the term “requirements” must be

“viewed through the lens of the ‘regulation[s]’ a State is

permitted to issue in section 136v(a).” Pet. Br. 17. The

alteration in the preceding quotation is Petitioners’, and it

makes all the difference. Section 136v(a) speaks of a State’s

authority to “regulate” and uses “the regulation” to denote the

act of regulating (which cannot be pluralized), not necessarily

to describe the form of positive law (of which there can be

plurals). Thus, although “laws and regulations” denotes

“positive enactments” when used together, Sprietsma v.

Mercury Marine, 537 U.S. 51, 63 (2002), “[state] regulation

can be as effectively exerted through an award of damages as

through some form of preventive relief.” Cipollone, 505 U.S.

at 521 (quoting San Diego Bldg. Trades Council, 359 U.S. at

247) (alteration in original). As Justice Breyer explains,

“(t]he effects of the state agency regulation and the state tort

suit are identical. To distinguish between them for pre-

emption purposes would grant greater power (to set state

standards ‘different from, or in addition to’ federal standards)

to a single state jury than to state official acting through state

administrative or legislative processes.” Medtronic, 518

U.S. at 504 (Breyer, J., concurring in part and concurring

in judgment).

B. Whether the EPA Actually Evaluates Product

Efficacy is Irrelevant to the Interpretation

of Section 136v(b), Which Turns on Whether

Product Efficacy is a Requirement under

FIFRA.

It is irrelevant to the analysis whether the EPA has waived

data requirements for or actually evaluates product efficacy

prior to registering a particular product and approving its

labeling and packaging. Section 136v(b) prohibits state law

requirements for labeling and packaging other than “those

required under this subchapter.” Under that subchapter,

section 136a(c)(5) requires the EPA to register a product if,

among other things, the EPA finds that “its composition is

such as to warrant the proposed claims for it” and if “it will

perform its intended function without unreasonable adverse

effects on the environment.”

Petitioners argue that the EPA waiver of data submission

for, and pre-registration evaluation of, product efficacy puts

product efficacy claims outside the preemptive scope of

section 136v(b). “Congress specifically amended FIFRA to

eliminate a requirement that the EPA evaluate a pesticide’s

efficacy, so § 136v(b)’s ‘requirements’ do not properly en-

compass common-law claims addressing efficacy.” Pet. Br.

29. This contention misconstrues the 1978 Amendments and

the effect of the EPA waiver.

The 1978 Amendments did not change the requirements

under FIFRA; they merely provided the EPA with flexibility

when reviewing a product’s efficacy. Under FIFRA, the EPA

must register a pesticide if it finds that “its composition is

such as to warrant the proposed claims for it,” 7 U.S.C.

§ 136a(c)(S)(A), and “it will perform its intended function

without unreasonable adverse effects on the environment,”

7 U.S.C. § 136a(c)(5)(C). The 1978 Amendments authorized

the EPA Administrator to “waive data requirements per-

taining to efficacy, in which event the Administrator may

composition is such as to warrant proposed claims of

efficacy.” 7 U.S.C. §136a(c)(5). The 1978 Amendment also

permitted conditional registration, as long as the pesticide

otherwise complies with federal law and the registrant

submits the same data required for registration under section

136a(c)(5). 7 U.S.C. § 136a(c)(7).

Although the 1978 Amendments permitted the EPA to

waive “data requirements,” it did not alter or rescind the

general requirement that a pesticide shall be registered if the

EPA finds that “its composition is such as to warrant the

proposed claims for it.” 7 U.S.C. § 136a(c)(5). As a result,

manufacturers still must provide efficacy data if the EPA so

requests. 40 C.F.R. § 158.640(b)(1); 40 C.F.R. § 158.540.

Moreover, manufacturers must report to the EPA when they

learn that their products have harmed a non-target organism,

such as the crop that the pesticide was designed to protect. 40

C.F.R. § 159.184(a)(1). The 1978 Amendments also left

unaltered FIFRA’s penalties for submitting a false or

misleading label. 7 U.S.C. § 136j(a)(1)(E).

Far from rescinding the product efficacy requirement under

FIFRA, Congress merely gave the EPA authority to choose

whether to require data submission, and when and how to

enforce the product efficacy requirement. Congress could

have repealed the product efficacy requirement. That it did

not do so, but instead gave EPA flexibility in enforcing the

requirement, reaffirms that the product efficacy provision

remains one of “those required under this subchapter.” 7

U.S.C. § 136v(b). Product efficacy is therefore still within

section 136v(b)’s preemptive scope, regardless of EPA’s

decision as to whether, when, and how to monitor compliance

or enforce violations of that requirement.

Petitioners’ reliance on actual EPA regulation as the

hallmark of preemption compounds the error in American

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

denied, 539 U.S. 969 (2003). The Texas Supreme Court there

focused only on the question of regulatory conflict

preemption—whether there is actual EPA regulation and

whether state law conflicts with such regulation. That analy-

sis is required by the Supremacy Clause regardless of whether

there is any other congressional expression of preemptive

intent. FIFRA empowers the EPA to regulate pesticides; such

regulations have the force of federal law. If state law

conflicts with such federal regulatory requirements, then in

classic conflict preemption fashion the Supremacy Clause

requires judges to enforce the federal regulation instead of the

state law. See Geier v. Am. Honda Motor Co., 529 U.S. 862,

874-75 (2000).

What the Texas Supreme Court did not consider, and what

Petitioners insist that this Court ignore, is that section 136v(b)

expands the scope of the federal law with which state law can

conflict in two very significant ways. First, it expands

the breadth of potential conflict by prohibiting any state

regulation of labeling or packaging “in addition to or different

from” federal requirements. 7 U.S.C. § 136v(b). Thus, any

state law that is in addition to or different from federal law

conflicts with section 136v(b) and therefore displaced by the

Supremacy Clause. Absent this provision, supremacy only

displaces those state laws that are in conflict with—not those

that are in addition to or different from—a substantive federal

requirement.

Second, section 136v(b) displaces state labeling require-

ments that differ “from those required under this subchapter.”

7 U.S.C. § 136v(b). On its face, the provision expands

preemption beyond conflict with actual EPA regulatory

activity. All that is required under the express preemption

provision is that the state imposes a requirement that is

different from those required by FIFRA. So long as product

efficacy remains a FIFRA requirement, state requirements

relating to product efficacy are preempted. It is irrelevant

whether, when or how EPA enforces this requirement; all that

matters for the purposes of section 136v(b) and express

preemption is that FIFRA requires it.

The Texas Supreme Court may perhaps be faulted for not

considering the effect of section 136v(b). Petitioners, how-

ever, would have this Court ignore the plain text of section

136v(b) altogether. Their argument that preemption is

dependent on actual EPA regulations renders section 136v(b)

devoid of meaning and superfluous to the preexisting legal

effect of the Supremacy Clause.

Medtronic, Inc. v. Lohr, 518 U.S. 504 (1996), is not to the

contrary. Justice Breyer’s controlling opinion there empha-

sized the ambiguous language of the preemption provision at

issue and the existence of an agency regulation preempting

only state claims that are “divergent” from “specific [federal]

requirements applicable to a particular device.” /d. at 506

(Breyer, J., concurring in part and concurring in the judg-

ment) (emphases and alteration in original). There is no

similar ambiguity in section 136v(b) and no limiting agency

interpretation.

In Medtronic, Justice Breyer described the Medical Device

Amendment’s preemption provision as “highly ambiguous,”

and determined that such ambiguity counseled against finding

that the provision preempted the tort claims at issue. /d. at

505. The MDA prohibits states from establishing or

continuing in effect “any requirement” different from or in

addition to “any requirement” applicable under federal law,

and which relates to the safety or effectiveness of the device

“or to any other matter included in a requirement applicable

to the device” under the MDA. Describing the provision’s

ambiguity, Justice Breyer noted that “(t]he words ‘any [state]

requirement’ and ‘any [federal] requirement,’ for example, do

not tell us which requirements are at issue, for every state

requirement that is not identical to even one federal

requirement is ‘different from, or in addition to’ that single

requirement.” /d. (emphasis in original). He concluded that

Congress could not have intended the MDA to have such

broad preemptive reach, and that it must have expected courts

to look the actions of the relevant administrative agency for

preemption guidance. Medtronic, 518 U.S. at 505-6.

Section 136v(b) is not burdened by the same ambiguity.

Section 136v(b) prohibits States from imposing or continuing

in effect “any requirements for labeling and packaging” in

addition to or different from “those required” under FIFRA.

Unlike the MDA provision, whose plain text was virtually

limitless in its preemptive reach, Congress expressly limited

FIFRA preemption to any state requirement that would affect

pesticide labeling and packaging. By linking the prohibition

against any state requirements for labeling or packaging to

federal requirements governing the same under FIFRA,

section 136v(b) provides “a clear congressional command as

to preemption,” id., and thus eliminates any need for courts to

review agency action for evidence of the federal statute’s pre-

emptive effect.

Similarly, Justice Breyer and every other Justice in Med-

tronic recognized the importance of the FDA’s authority to

issue regulations altering the scope of preemption. Med-

tronic, 518 U.S. at 496-97; id. at 506 (Breyer, J., concurring

in part and concurring in the judgment); id. at 511-12

(O’Connor, J., concurring in part and dissenting in part).

Justice Stevens explained that his decision was “substantially

informed by” the FDA regulations “interpreting the scope of

§ 360k’s pre-emptive effect.” /d. at 495.

By contrast, there is no EPA regulation altering or limiting

the scope of section 136v(b) because “Congress did not give

the EPA an analogous role” under FIFRA. Eftcheverry v. Tri-

Ag Service, Inc., 22 Cal. 4th 316, 330 (2000) (citing Oliver v.

Reckitt & Colman, Inc., 12 F. Supp. 2d 1287, 1291 (M.D.

Fla. 1998). Unlike the MDA, FIFRA does not permit the

EPA to exempt state requirements from the statute’s pre-

emptive effect. In fact, FIFRA’s text nowhere links section

136v(b)’s preemptive reach to the issuance of EPA

regulations. The only FIFRA provision even close to a

statutorily-delegated power of exemption is found in section

136p, which authorizes the EPA to grant emergency

exceptions to federal and state regulatory agencies who wish

to use FIFRA-registered pesticides for non-labeled uses. This

power of statutory exemption relates only to FIFRA

section 136j(aX2)G)’s otherwise strict prohibition against

using any pesticide in a manner inconsistent with its label,

and it is strictly construed by the EPA. See 40 C.F.R. Part

166. Section 136p demonstrates that when Congress intends

to grant the EPA authority to create exceptions to FIFRA’s

statutory scheme, it knows how to do so.

CONCLUSION

For the foregoing reasons, as well as those set forth in the

Brief for Respondents, the decision below should be affirmed.

Respectfully submitted,

Viet D. DINH