8th Circuit

Something strange began happening on Gary Goodwin's east Arkansas farm in 1992. The leaves on his tomato plants thinned and curled up on themselves, as if they were melting. The tomatoes, which normally grew about 12 inches wide, barely reached 2 inches. It was a disaster for Goodwin, whose 60,000 tomato plants had produced 360 tons of fruit in 1991, earning him $250,000.

Other tomato farmers in east Arkansas also were confronted with sickly, withering plants. They had no idea what was going on. But 1992 was the first year that a new herbicide, Facet, was on the market.

Rice farmers around the state eagerly adopted Facet, a chemical that destroys barnyard grass. When these farmers sprayed their crops, some of the chemical drifted through the air and landed on the tomato plants of nearby farms.

Even after scientific studies revealed Facet is extremely toxic to tomato plants, the rice farmers continued to use the product because it was the only herbicide that could kill a particular strain of barnyard grass. And so, every year since 1992, tomato farmers in east Arkansas have suffered. Most were eventually forced out of business.

Then in 2000, 11 farmers filed a class action suit against BASF Corp., the New Jersey-based manufacturer of Facet. The farmers sought $7 million in compensation, as well as punitive damages.

The district court threw out the lawsuit in 2003, saying the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) pre-empted the state tort law claims. The 8th Circuit affirmed the ruling on Feb. 11. Critics say the appellate court's decision in Hardin v. BASF Corp. grants chemical companies almost complete immunity from lawsuits, making them largely unaccountable for any harm caused by their pesticides, fungicides or rodenticides.

Some see this ruling as part of a larger pattern--a growing movement to use federal pre-emption to shield companies from liability under applicable state laws.

"There is a major and dangerous trend taking place," says Arthur Bryant, executive director of Trial Lawyers for Public Justice, a public interest law firm. "The federal government is saying that laws designed to protect the public somehow eliminate the public's right to sue."

Industrial Accountability

Congress enacted FIFRA in 1947 to protect the public from the dangers of pesticides and related poisons. The statute now requires every company that wants to market one of these chemicals to first register the product with the EPA. In deciding whether to grant a registration, the EPA reviews the economic, social and environmental costs and benefits of using the chemical. If the benefits outweigh the costs, the EPA will allow the company to market the chemical, as long as the product is accompanied by an easily understandable, EPA-approved label that explains exactly how and when the product is to be used.

Once the EPA approves a label, FIFRA provides the chemical's maker with a pre-emption defense against certain state law claims that "impose ... any requirements for labeling or packaging in addition to or different from those required under [FIFRA]." This prevents, for instance, suits alleging the manufacturer failed to properly warn purchasers about the dangers posed by the product, or that the manufacturer breached its expressed or implied warranties for the product.

The tomato farmers in Hardin tried to get around FIFRA's pre-emption clause by claiming BASF defectively designed Facet--that no matter what label BASF stuck on the product, the herbicide was unreasonably dangerous for its intended use.

The 8th Circuit didn't buy it, finding the plaintiffs were really asserting Facet is defective when used in a particular way or area. If the plaintiffs were successful, the court found, BASF would alter its label to warn purchasers of these dangers and change the instructions for applying the chemical. Thus, the three-judge panel held, the suit was pre-empted because it indirectly challenged the EPA-approved label.

"This is a pro-chemical industry application of legal principles," says Harrison Pittman, a staff attorney at the National Center for Agricultural Law Research & Information at the University of Arkansas School of Law. "There needs to be more checks and balances in favor of farmers who have suffered damages."

However, there are public policy arguments for the ruling, too, Pittman adds.

"The federal government can say, 'we want to promote agricultural production and help increase exports, so we don't want the states to interfere with our policy.'"

Federal Power

The 8th Circuit isn't alone in expansively interpreting the scope of federal pre-emption.

Courts all over the nation have found that FIFRA forbids many suits against companies that make pesticides and herbicides.

The Supreme Court also is expected to rule in this area soon. On Jan. 10, the Court heard oral arguments on whether FIFRA prevents the maker of an allegedly defective pesticide from being sued by purchasers of the chemical.

Pre-emption has also become more prominent in other areas of the law. For instance, courts have repeatedly found federal law pre-empts state law claims against the makers of drugs and medical devices brought under state law. And the Office of the Comptroller of the Currency--the federal agency that regulates banks--recently reversed its position on state consumer protection laws, asserting pre-emption prevents these laws from applying to national banks.

This pre-emption trend may be good for some businesses, but it leaves others with no way to protect their interests.

"If farmers' crops are injured, they have no recourse," says Hank Bates, an attorney at Cauley Bowman who represents some of the Hardin plaintiffs. "The only legal suit they can file is for bankruptcy."

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Steven Seidenberg

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