The Public Health Cigarette Smoking Act of 1969 forbade states from imposing “requirements” on the labels and warnings of cigarette products. Thus, began the preemption defense set forth in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) which was thereafter arguably applied to air bags, automobile tires, medical devices, tobacco as well as pesticides. Based upon the authority of Cipollone, lower courts developed the principal that any cause of action that might induce a pesticide manufacturer to change its label was preempted. Thus, there has been approximately 15 years of Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preemption.
On April 27, 2005, the United States Supreme Court decided Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788, which held that FIFRA did not preempt claims for defective design, defective manufacture, negligent testing, breach of expressed warranty and violation of the Texas Deceptive Trade Practices Act.
Pesticides are a dangerous risk to humans. The pesticide DDT nearly wiped out the American Bald Eagle, our national symbol. Persistent organic pesticides (POP) are found in the tissue of sea animals and human breast milk around the world. Millions of American homes are contaminated with pesticides. Pesticides have been strongly implicated with childhood cancer. In Bates, the United State Supreme Court, by quoting another court opinion, said: “By encouraging plaintiffs to bring suit for injuries not previously recognized as traceable to pesticides... a state court action of [this] kind under review may aid in the exposure of new dangers associated with pesticides... [which ] may lead manufacturers to petition EPA to allow more detailed labeling of these products...”
It now appears that state court actions are once again available against pesticide manufacturers. The Bates opinion suggest that FIFRA preemption is to be interpreted narrowly as effecting only state regulation of the label wording. Therefore, it appears that damages caused by pesticides are again a potentially viable cause of action.
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