# Amicus Curiae Brief — Bates v. Dow Agrosciences LLC

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0709%3A18

## Record

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

## 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=

12

16

17

21
27

iv
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

v

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

vi
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-
eo
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

2

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;
(C) it will perform its intended function without unrea-
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

3

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).

4

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

5

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.

6
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

7

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.

8

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

9

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.

10

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.

12

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

13

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

14

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

15

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.

16

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’

17

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
register a pesticide without receiving or reviewing efficacy
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).

18

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).

19

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);

20

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.

ye

21

“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

22

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
register the pesticide without determining that the pesticide’s
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

23

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

24

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.

25

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

26

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,

27

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
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0709%3A18. Public record. Not legal advice.