By John W. Scanlan, J.D.
Claims for negligence, defective design and manufacture, and breach of warranty brought by a plaintiff alleging that she had been injured by a fungicide product were not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) because they were based on theories of recovery not related to labeling or packaging, a New York appellate court ruled in modifying a trial court’s decision to grant the manufacturer’s motion to dismiss them (Esposito v. Contec, Inc., February 3, 2017, per curiam).
Preemption. FIFRA and its regulations place approval and labeling requirements on manufacturers of insecticides, fungicides, and rodenticides that require that the labels for these products not contain any statement that is false and misleading or omit any necessary instructions, warnings, or cautionary statements. Interpreting the statute’s preemption provision, the U.S. Supreme Court stated in its 2005 decision in Bates v. DOW Agrosciences that a state rule is preempted by FIFRA only to the extent it constitutes a labeling or packaging requirement that is in addition to or different from FIFRA requirements, but not to the extent it imposes equivalent or parallel requirements. The plaintiff’s failure to warn claims and her claims that the manufacturer encouraged an unsafe use of its product properly were preempted because finding for the plaintiff on these claims would impose requirements inconsistent with the EPA-approved warning label. However, the other claims did not relate to labeling or packaging and, thus, were not preempted.
The case is No. CA 16-00211.
Attorneys: Robert A. Cohen (The Rob Cohen Law Office, LLC) for Mary Esposito. Matthew S. Lerner (Goldberg Segalla LLP) for Contec, Inc.
Companies: Contec, Inc.
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