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.

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.


Steven Seidenberg

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