Etcheverry v. Tri-Ag, No. S072524.

CourtUnited States State Supreme Court (California)
Writing for the CourtBROWN, J.
Citation993 P.2d 366,22 Cal.4th 316,93 Cal.Rptr.2d 36
PartiesMonique ETCHEVERRY et al., Plaintiffs and Appellants, v. TRI-AG Service, Inc., et al., Defendants and Respondents.
Docket NumberNo. S072524.
Decision Date02 March 2000

93 Cal.Rptr.2d 36
22 Cal.4th 316
993 P.2d 366

Monique ETCHEVERRY et al., Plaintiffs and Appellants,
v.
TRI-AG Service, Inc., et al., Defendants and Respondents

No. S072524.

Supreme Court of California.

March 2, 2000.


93 Cal.Rptr.2d 37
Souza, Coats, McInnis, Mehlhaff & Hay, Mehlhaff & Hay and Robert Mehlhaff, Tracy, for Plaintiffs and Appellants

The Alexander Law Firm, Richard Alexander, Amanda Hawes, Santa Rosa, Ann Saponara; and Jose Padilla, Los Angeles, for Rural Legal Assistance Foundation and Trinidad Elias as Amici Curiae on behalf of Plaintiffs and Appellants.

Public Citizen Litigation Group, Erica Craven and Allison M. Zieve, Washington, D.C., for Public Citizen, Inc., as Amicus Curiae on behalf of Plaintiffs and Appellants.

Gary S. Guzy; Robert G. Dreher; Jonathan J. Fleuchaus; Lois J. Schiffer; Washington, D.C., Jared A. Goldstein; and Anne R. Traum for the United States as Amicus Curiae on behalf of Plaintiffs and Appellants.

Borton, Petrini & Conron, Bradley A. Post and Samuel L. Phillips, Bakersfield, for Defendants and Respondents Tri-Ag Service, Inc., and Paul Osterlie.

Law Offices of James W. Rushford, Thompson, Meade, Nielsen & Rushford, Rushford & Bonotto, James W. Rushford; Sacramento, Holtzman, Urquhart & Moore, Holtzman & Urquhart, James L. Moore, Jack E. Urquhart, John W. Ghezzi; McKenna & Cuneo, Lawrence S. Ebner, R. Wicks Stephens II, Los Angeles, and J. Lane Tilson for Defendant and Respondent Bayer Corporation.

Barnes & Thornburg, Dean T. Barnhard, Indianapolis, IN.; Haight, Brown & Bonesteel and Lisa L. Oberg, San Francisco, for American Crop Protection Association, RISE, Chemical Producers and Distributors Association, Chemical Manufacturers Association, Chemical Specialties Manufacturers Association and International Sanitary Supply Association as Amici Curiae on behalf of Defendant and Respondent Bayer Corporation.

Susan Liebeler, Malibu; Holland & Hart, Elizabeth R. Jones, Denver, CO.; Daniel J. Pope, Chicago, IL.; and Paul D. Kamenar, Washington, D.C., for Washington Legal Foundation as Amicus Curiae on behalf of Defendants and Respondents.

Mayer, Brown & Piatt, Kenneth S. Geller, Alan E. Untereiner and Donald M. Falk, Washington, D.C., for Product Liability Advisory Council, Inc., as Amicus Curiae on behalf of Defendants and Respondents.

BROWN, J.

The question presented by this case is whether state law claims for failure to warn of the risks of using a pesticide are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq. (FIFRA)).

Unlike the Court of Appeal here, the overwhelming majority of the courts that have considered this question, including eight of the federal circuit courts of appeals, have concluded that state law failure-to-warn claims are preempted by FIFRA.

93 Cal.Rptr.2d 38
(See, e.g., Grenier v. Vermont Log Bldgs., Inc. (1st Cir.1996) 96 F.3d 559; King v. E.I. Dupont De Nemours & Co. (1st Cir.1993) 996 F.2d 1346, cert. dism. (1993) 510 U.S. 985, 114 S.Ct. 490, 126 L.Ed.2d 440; Worm v. American Cyanamid Co. (4th Cir.1993) 5 F.3d 744; Mac-Donald v. Monsanto Co. (5th Cir.1994) 27 F.3d 1021; Kuiper v. American Cyanamid Co. (7th Cir.1997) 131 F.3d 656, cert. den. (1998) 523 U.S. 1137, 118 S.Ct. 1839, 118 S.Ct. 1839; Shaw v. Dow Brands, Inc. (7th Cir.1993) 994 F.2d 364; Bice v. Leslie's Poolmart, Inc. (8th Cir.1994) 39 F.3d 887; Taylor AG Industries v. Pure-Gr o (9th Cir.1995) 54 F.3d 555; Arkansas-Platte & Gulf v. Van Waters & Rogers (10th Cir. 1993) 981 F.2d 1177, cert. den. (1993) 510 U.S. 813, 114 S.Ct. 60, 126 L.Ed.2d 30; Papas v. Upjohn Co. (11th Cir.1993) 985 F.2d 516, cert. den. (1993) 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248; accord, Louisiana-Pacific Corp. v. Koppers Co. (1995) 32 Cal.App.4th 599, 38 Cal.Rptr.2d 257; contra, Ferebee v. Chevron Chemical Co. (D.C.Cir.1984) 736 F.2d 1529.)

While we are not bound by decisions of the lower federal courts, even on federal questions, they are persuasive and entitled to great weight. (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129.) Where lower federal precedents are divided or lacking, state courts must necessarily make an independent determination of federal law (Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d 759, 764, 336 P.2d 521, revd. without comment on this point 362 U.S. 628, 80 S.Ct. 1050, 4 L.Ed.2d 1002), but where the decisions of the lower federal courts on a federal question are "both numerous and consistent," we should hesitate to reject their authority (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 150, 53 Cal.Rptr.2d 336).

The federal court decisions holding that FIFRA preempts state law failure-to-warn claims are numerous, consistent, pragmatic and powerfully reasoned. As discussed below, we find their analysis persuasive and reverse the judgment of the Court of Appeal reaching the contrary conclusion.

FACTUAL AND PROCEDURAL BACKGROUND

Under FIFRA, all pesticides sold in the United States must be registered with the United States Environmental Protection Agency (EPA). (7 U.S.C. § 136a(a).)1 In the registration application, manufacturers must submit draft label language addressing a number of different topics, including ingredients, directions for use (40 C.F.R. § 152.50 (1999)), and any information of which they are aware regarding "unreasonable adverse effects of the pesticide on man or the environment." (40 C.F.R. § 152.50(f)(3).) Prior to registering a pesticide, the EPA must find that its labeling complies with FIFRA's requirements. (§ 136a(c)(5)(B).) This includes the EPA's determination that the pesticide is not "misbranded." (See 40 C.F.R. § 152.112(f).) A pesticide is misbranded if, inter alia, its label "does not contain a warning or caution statement which may be necessary and ... is adequate to protect health and the environment." (§ 136(q)(G).) In addition, the EPA must find that the pesticide, when used in accordance with its labeling, "will perform its intended function without unreasonable adverse effects on the environment." (§ 136a(c)(5)(C).) "Unreasonable adverse effects on the environment" are defined as "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." (§ 136(bb).) Finally, FIFRA provides that a state "shall not impose or continue in effect any requirements for labeling ... in addition to or different from those required under this subchapter." (§ 136v(b).)

93 Cal.Rptr.2d 39
Defendant Bayer Corporation (Bayer) manufactures the pesticides Guthion and Morestan, the labels of which were approved by the EPA. The label for Guthion states that application to walnuts to kill codling moths and other insects is a recommended use, with the recommended amount being three to four pounds per acre as a full coverage spray. The label for Morestan states that application to walnuts to kill aphids and mites is a recommended use, with the recommended amount being one to one-and-one-half pounds per 100 gallons of water as a full coverage spray

Plaintiffs operate walnut orchards and purchased Guthion and Morestan from defendant Tri-Ag Service, Inc. (Tri-Ag). Defendant Paul Osterlie, a pest control adviser licensed in California and a Tri-Ag employee, recommended a combined application of Guthion and Morestan at three pounds each per treated acre, along with other materials, and water delivered in an aggregate of 125 gallons of material per acre. Plaintiffs followed Osterlie's recommendations and applied the combination of Guthion and Morestan to three orchards, resulting in approximately $150,000 damage to their walnut crop.

Plaintiffs sued Tri-Ag, Osterlie, and Bayer for negligence, strict liability for ultrahazardous activity, negligence per se, products liability, breach of implied warranty, misrepresentation, and trespass. Defendants moved for summary judgment on the ground that all of the causes of action, in effect, challenged the adequacy of the warnings on Guthion's and Morestan's EPA-approved labels, and thus were preempted by FIFRA. In two summary judgment rulings, the trial court agreed, holding that all of plaintiffs' causes of action "allege inadequate labeling in one form or another," with the "main issue being the failure of the labels to warn against mixing chemicals." In addition, the court held plaintiffs failed to produce evidence indicating a cause of action for negligence against defendants Tri-Ag and Osterlie, and as to the cause of action for misrepresentation, failed to raise a triable issue of fact as to intent to defraud on the part of defendants. The Court of Appeal reversed.

DISCUSSION

Recognizing that the overwhelming majority of the courts examining the question have concluded FIFRA preempts state law failure-to-warn claims, the Court of Appeal asked itself how "the bulk of the case law [had] gone astray." There were two answers, the court found. One was the perceived failure of the other courts to draw the correct lesson from Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (Cipollone ), in which the Supreme Court held the Public Health Cigarette Smoking Act of 1969 preempted state law failure-to-warn actions. Specifically, the Court of Appeal argued, "the case law goes wrong in failing to consider, as the proper analogy, the preemption provision of the Cigarette Labeling and Advertising Act of 1965," which the high court held does not bar common law actions. The second was the failure of the other courts "to consider adequately" the text of the FIFRA preemption provision (§ 136v(b)) in light of the rest of the statute, particularly subdivision (a) of section 136v. The one case that got it right, in the view of the Court of Appeal, was Ferebee v. Chevron Chemical Co., supra, 736 F.2d 1529 (Ferebee).

A. Cipollone, The Preemption Provisions of The 1965 And 1969 Cigarette Acts, And The Lessons To Be Drawn...

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68 practice notes
  • People ex rel. Lockyer v. R.J. Reynolds, No. B160571
    • United States
    • California Court of Appeals
    • October 30, 2003
    ...are `both numerous and consistent,' we should hesitate to reject their authority [citation]." (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 320-321, 93 Cal.Rptr.2d 36, 993 P.2d 366 (Etcheverry).) Rockwood and Jones do not constitute a "numerous" body of law. Additionally, Jones......
  • Nelsen v. Legacy Partners Residential, Inc., No. A132927.
    • United States
    • California Court of Appeals
    • October 31, 2012
    ...federal law, it follows we are also not bound by federal administrative interpretations. (See Etcheverry v. Tri–Ag Service, Inc. (2000) 22 Cal.4th 316, 320–321, 93 Cal.Rptr.2d 36, 993 P.2d 366, overruled in part by Bates v. Dow Agrosciences L.L.C. (2005) 544 U.S. 431, 125 S.Ct. 1788, 161 L.......
  • Arrow Highway Steel, Inc. v. Dubin, B303289
    • United States
    • California Court of Appeals
    • October 29, 2020
    ...Fairbanks v. Superior Court (2009) 46 Cal.4th 56, 63, 92 Cal.Rptr.3d 279, 205 P.3d 201 ; cf. Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 321, 93 Cal.Rptr.2d 36, 993 P.2d 366 [noting that the decisions of lower federal courts "on a federal question" are particularly persuasive ......
  • Kanter v. Warner-Lambert Co., No. A094975.
    • United States
    • California Court of Appeals
    • June 25, 2002
    ...(Earner v. Leeds (2000) 24 Cal.4th 676, 683, 102 Cal.Rptr.2d 97, 13 P.3d 704; see, e.g., Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 321-322, 93 Cal.Rptr.2d 36, 993 P.2d 366.) Therefore we undertake an independent consideration of the meaning and scope of the federal preemptio......
  • Request a trial to view additional results
68 cases
  • People ex rel. Lockyer v. R.J. Reynolds, No. B160571
    • United States
    • California Court of Appeals
    • October 30, 2003
    ...are `both numerous and consistent,' we should hesitate to reject their authority [citation]." (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 320-321, 93 Cal.Rptr.2d 36, 993 P.2d 366 (Etcheverry).) Rockwood and Jones do not constitute a "numerous" body of law. Additionally, Jones......
  • Nelsen v. Legacy Partners Residential, Inc., No. A132927.
    • United States
    • California Court of Appeals
    • October 31, 2012
    ...federal law, it follows we are also not bound by federal administrative interpretations. (See Etcheverry v. Tri–Ag Service, Inc. (2000) 22 Cal.4th 316, 320–321, 93 Cal.Rptr.2d 36, 993 P.2d 366, overruled in part by Bates v. Dow Agrosciences L.L.C. (2005) 544 U.S. 431, 125 S.Ct. 1788, 161 L.......
  • Arrow Highway Steel, Inc. v. Dubin, B303289
    • United States
    • California Court of Appeals
    • October 29, 2020
    ...Fairbanks v. Superior Court (2009) 46 Cal.4th 56, 63, 92 Cal.Rptr.3d 279, 205 P.3d 201 ; cf. Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 321, 93 Cal.Rptr.2d 36, 993 P.2d 366 [noting that the decisions of lower federal courts "on a federal question" are particularly persuasive ......
  • Kanter v. Warner-Lambert Co., No. A094975.
    • United States
    • California Court of Appeals
    • June 25, 2002
    ...(Earner v. Leeds (2000) 24 Cal.4th 676, 683, 102 Cal.Rptr.2d 97, 13 P.3d 704; see, e.g., Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 321-322, 93 Cal.Rptr.2d 36, 993 P.2d 366.) Therefore we undertake an independent consideration of the meaning and scope of the federal preemptio......
  • Request a trial to view additional results

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