Academic journal article Defense Counsel Journal

Federal Preemption

Academic journal article Defense Counsel Journal

Federal Preemption

Article excerpt

No Matter How You Slice It It's Still the Label

The Fifth Circuit turned back an attempt by a Mississippi rice grower to avoid federal preemption of his diversity action against a herbicide manufacturer based on state tort law.

The plaintiff applied WHIP 360, a herbicide manufactured by AgrEvo USA Co., in accordance with the product's labeling to combat a weed known as sprangletop. But not only were the weeds not controlled, but the rice crop was damaged. His complaint alleged that the product failed to perform as specified on the label, that he relied to his detriment on the label, and that the manufacturer breached its implied warranty of fitness for a particular purpose.

The product was labeled in accordance with the comprehensive scheme demanded by the Federal Insecticide, Fungicide, and Rodenticide Act, known as FIFRA. The manufacturer defended on the ground of federal preemption of the action, relying on the provision in FIFRA that states "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required" by FIFRA. To this the plaintiff responded that federal preemption had nothing to do with his suit-that he was not faulting the labeling but rather the failure of the product to perform as labeled. …

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