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United States District Court for the Eastern District of New York
July 16, 1992, Decided ; July 16, 1992, Filed
[*1130] Memorandum and Order
Jack B. Weinstein, District Judge:
The claim is that two children are brain damaged because their mother was exposed to a household insecticide while pregnant with them. Relying on state tort law, the parents sue both the manufacturer of the active ingredient and of the final product. Defendants move for summary judgment on the ground that the suit is preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and corresponding regulations. See 7 U.S.C. §§ 136-136y; 40 C.F.R. §§ 152-86 (1990).
[*1131] ] FIFRA requires all insecticides to be registered with the federal Environmental Protection Agency (EPA). EPA is required to review information supplied by registrants concerning the efficacy and environmental effects of each insecticide. [**2] EPA must also approve all insecticide labels and packaging. Under FIFRA, EPA's authority over labeling is exclusive: states are barred from imposing further labeling requirements.
The issue in the case is whether these and other FIFRA provisions preclude common law actions against insecticide manufacturers and retailers. The question is particularly important and timely since the United States Supreme court has just spoken on the issue of tort preemption in Cipollone v. Liggett Group, Inc., U.S. , 60 U.S.L.W. 4703 (June 24, 1992). For the reasons indicated below, none of the state law tort actions are preempted in their entirety. The motions for summary judgment therefore must be denied.
Defendant Dow Chemical Company produces chlorpyrifos, sold under the trade name Dursban. Dursban has been registered under FIFRA as a pesticide since 1981 and is packaged in containers bearing an EPA-approved label. Dursban is not an "end-use" product: Dow sells it exclusively to insecticide manufacturers.
Defendant Kenco Manufacturing, a subsidiary of defendant Core Markets, Inc., uses Dursban and a solvent, Xylene, in manufacturing "Rid-A-Bug Flea & [**3] Tick Killer." Rid-A-Bug is sold both to professional exterminators and directly to consumers in home dispensers to combat flea and tick infestation. The product is registered with EPA and sold with an EPA-approved label that includes directions for indoor and outdoor use, a money-back guarantee, and the following warnings:
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
797 F. Supp. 1128 *; 1992 U.S. Dist. LEXIS 10575 **; 23 ELR 20192
MARY ELLEN BURKE and KEVIN BURKE, infants, by their mother and natural guardian, LORRAINE A. BURKE, LORRAINE A. BURKE, individually and KEVIN BURKE, individually, Plaintiffs, -against- THE DOW CHEMICAL CO., KENCO CHEMICAL & MFG. CORP., and CORE MARKETS, INC., Defendants.
labeling, pesticide, preempted, manufacturer, warnings, preemption, failure to warn, registration, cigarette, state law, advertising, state tort law, regulation, packaging, registered, products, preemption clause, courts, design defect, insecticide, cases, implied preemption, plaintiffs', provisions, effects, risks, express preemption, consumers, promotion, summary judgment
Business & Corporate Compliance, Environmental Law, Hazardous Wastes & Toxic Substances, Pesticides, Environmental Law, Administrative Proceedings & Litigation, Judicial Review, Governments, Agriculture & Food, General Overview, Federal Insecticide, Fungicide & Rodenticide Act, Governments, Disease & Pest Control, Toxic Substances, Federal Government, Claims By & Against, Civil Procedure, Federal & State Interrelationships, Choice of Law, Constitutional Law, Supremacy Clause, Congressional Duties & Powers, Commerce Clause, Torts, Products Liability, Theories of Liability, Strict Liability, Types of Defects, Marketing & Warning Defects, Negligence, Administrative Law, Judicial Review, Reviewability, Standing, Procedural Matters, Preemption, Express Preemption, Implied Preemption, Legislation, Interpretation, Antitrust & Trade Law, Consumer Protection, Tobacco Products, State Regulation