Taylor AG Industries v. Pure-Gro

• Decision Date: 24 April 1995
• Docket Number: I-,D,No. 93-16852,PURE-GRO,93-16852
• Citation: 54 F.3d 555
• Parties: , 63 USLW 2756, 25 Envtl. L. Rep. 20,899, 26 UCC Rep.Serv.2d 734, Prod.Liab.Rep. (CCH) P 14,216 TAYLOR AG INDUSTRIES, a general partnership; Salt River Valley Farms, a general partnership; 5J Farms, a general partnership, Plaintiffs-Appellants, v., a California corporation; Nor Am Chemical Co.; Miles Inc., an Indiana corporation (formerly Mobay); Black & White Corporations,efendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 555

54 F.3d 555

40 ERC 1777, 63 USLW 2756, 25 Envtl.

L. Rep. 20,899,

26 UCC Rep.Serv.2d 734,

Prod.Liab.Rep. (CCH) P 14,216

TAYLOR AG INDUSTRIES, a general partnership; Salt River

Valley Farms, a general partnership; 5J Farms, a general partnership, Plaintiffs-Appellants, v. PURE-GRO, a California corporation; Nor Am Chemical Co.;

Miles Inc., an Indiana corporation (formerly

Mobay); Black & White Corporations,

I-V, Defendants-Appellees.

No. 93-16852.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 1995.

Decided April 24, 1995.

William J. Downey, Rake & Downey, Phoenix, AZ, and Patti A. Goldman, Public Citizens Litigation Group, Washington, DC, for plaintiffs-appellants.

James L. Moore, Holtzman, Urquhart, Bayko & Moore, Houston, TX, for defendant-appellee, Miles Inc.

Charles J. Muchmore, Muchmore & Wallwork, Phoenix, AZ, for defendant-appellee, Nor Am Chemical Co.

April V. Pearson, Pure-Gro Co. Law Dept., Brea, CA, and Francis J. Balint, Jr., Bonnett, Fairbourn, Friedman, Hienton, Miner & Fry, P.C., Phoenix, AZ, for defendant-appellee, Pure-Gro Co.

Lawrence S. Ebner, McKenna & Cuneo, Washington, DC, argued on behalf of appellees and on brief for the amicus, Nat'l Agricultural Chemicals Assoc.

Appeal from the United States District Court for the District of Arizona.

Before: CHOY, CANBY, and T.G. NELSON, Circuit Judges.

CHOY, Circuit Judge:

Taylor AG Industries, Salt River Valley Farms, and 5J Farms (collectively "Appellants") appeal the district court's grant of summary judgment on their state law tort and contract claims. The district court granted summary judgment on the ground that the preemption provision of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. Sec. 136v(b), preempts all of Appellants' claims. We affirm.

I

Appellants are partnerships engaged in cotton farming in Arizona and sued to recover for damage to their cotton crop. The damage allegedly resulted from the application of a mixture of two defoliant chemicals, DROPP 50WP ("DROPP"), manufactured by Nor Am Chemical Company ("Nor Am"), and DEF-6, manufactured by Miles Inc. ("Miles"), formerly Mobay Corporation.

The labels on the two defoliants and the 1991 DROPP Product Guide ("Product Guide") recommended a mixture of the two chemicals to improve defoliation in the conditions present in Arizona. However, there was a discrepancy in the dosage rates indicated in the DROPP label and the DEF-6 label: The DROPP label and the Product Guide recommended a maximum amount of DROPP to be applied with DEF-6 that was four times higher than the maximum amount recommended by the DEF-6 label. The exact language on both labels was approved by the United States Environmental Protection Agency ("EPA").

Appellants allegedly combined the two chemicals in accordance with the instructions provided on the labels and the Product Guide and applied the mixture to their fields. Rather than defoliating the leaves from the cotton plants, the chemicals allegedly prevented some bolls from opening and producing cotton for harvest. As a result, the Appellants claim to have suffered, among other damage, a lower-than-anticipated yield of cotton.

Appellants purchased the two defoliant chemicals in 1991 from Pure-Gro ("Pure-Gro"), a retail seller and distributor of agricultural chemicals. An alleged discussion took place between Appellants' representative and Pure-Gro's representative, Scott Stagner ("Stagner"), regarding the use of the two products. Appellants allege that during this discussion, Stagner directed them to the Product Guide for dosage information. As a result of their reliance on Stagner's representation, Appellants claim to have suffered the damage.

In 1992, Appellants filed an action against Nor Am and Miles (collectively "Manufacturers") and Pure-Gro for the damage caused to their cotton crop. In their third amended complaint, ¹ Appellants asserted five causes of action: (1) strict liability against the Manufacturers and Pure-Gro for failing to provide adequate warning; (2) negligent failure on the part of the Manufacturers to test and design the chemicals for the condition in which Appellants used them; (3) breach of express warranty against Pure-Gro; (4) breach of implied warranty of merchantability against Pure-Gro; and (5) breach of implied warranty of fitness for a particular purpose against Pure-Gro.

In January 1993, the Manufacturers, joined by Pure-Gro, moved for summary judgment on the ground that 7 U.S.C. Sec. 136v(b) preempts all of Appellants' claims. On August 24, 1993, the district court granted the motion for summary judgment with respect to all claims. The district court held that Sec. 136v(b) expressly preempts the strict liability and negligent testing claims because they require a showing that the EPA-registered labels were inadequate and suggest that an alternate labeling system is warranted. Furthermore, the district court held that Appellants' breach of implied warranty claims were preempted because implied warranties arise by operation of state law to impose labeling requirements indirectly. Finally, the district court dismissed Appellants' claim against Pure-Gro for breach of express warranty because there was no evidence establishing that Stagner made any statements about the use of the chemicals that were inconsistent with or went beyond either the chemicals' labels or the Product Guide. Appellants timely filed a notice of appeal on September 22, 1993. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II

Appellants contend that the district court erred by granting summary judgment on their various state law claims. We review de novo the district court's grant of summary judgment, limiting our review to the record presented to the district court at the time of summary judgment. Lippi v. City Bank, 955 F.2d 599, 604 (9th Cir.1992). Viewing the evidence in the light most favorable to Appellants, we must determine whether there is any genuine issue of material fact. Id. In opposing summary judgment, Appellants have the burden of putting forth evidence sufficient to establish a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2253, 91 L.Ed.2d 265 (1986).

III

FIFRA, 7 U.S.C. Secs. 136-136y, is a comprehensive federal statute which regulates pesticide use, sales, and labeling, and grants enforcement authority to the EPA. Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 601, 111 S.Ct. 2476, 2479-80, 115 L.Ed.2d 532 (1991). FIFRA expressly prohibits states from imposing "any requirements for labeling or packaging in addition to or different from those required" under it. 7 U.S.C. Sec. 136v(b). Appellants contend that the Sec. 136v(b) preemption provision applies to only positive state enactments and not to state tort claims. Therefore, they argue that the district court erred by dismissing their failure to warn claim against both the Manufacturers and Pure-Gro on the basis of preemption.

The Supremacy Clause of the United States Constitution provides that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Congressional intent determines whether a federal statute preempts state law. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137-38, 111 S.Ct. 478, 481-82, 112 L.Ed.2d 474 (1990). Where Congress has included an express preemption provision in an act, there is no need to divine an implied congressional intent regarding preemption from other provisions in the act. Cipollone v. Ligget Group, Inc., --- U.S. ----, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992).

The Supreme Court has addressed the issue of preemption in the context of cigarette labeling in Cipollone and has indicated that its analysis in Cipollone should be applied to FIFRA preemption determinations. See King v. E.I. Dupont De Nemours & Co., 996 F.2d 1346, 1349 (1st Cir.), cert. dismissed, --- U.S. ----, 114 S.Ct. 490, 126 L.Ed.2d 440 (1993). The Supreme Court vacated the judgments in Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir.1991) ("Papas I "), vacated & remanded sub nom. Papas v. Zoecon Corp., --- U.S. ----, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992), and Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 959 F.2d 158 (10th Cir.) ("Arkansas-Platte I "), vacated & remanded sub nom. Arkansas-Platte & Gulf Partnership v. Dow Chem. Co., --- U.S. ----, 113 S.Ct. 314, 121 L.Ed.2d 235 (1992), and remanded for consideration in light of Cipollone. King, 996 F.2d at 1349.

In Cipollone, the Supreme Court held that the preemption provision of the Public Health Cigarette Act of 1969 ("1969 Cigarette Act"), 15 U.S.C. Secs. 1331-1340, prevents states from imposing tort liability on the basis of inadequate labeling. --- U.S. at ---- - ----, 112 S.Ct. at 2619-21. The preemption provision of the 1969 Cigarette Act states:

No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.

15 U.S.C. Sec. 1334(b). The Supreme Court reasoned that "[t]he phrase '[n]o requirement or prohibition' sweeps broadly and suggests no distinction between positive enactments and common law.... The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." Cipollone, --- U.S. at ----, 112 S.Ct. at 2620.

There is no notable difference between the language in the 1969 Cigarette Act and the language in FIFRA. Section 136v(b) states that "[s]uch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." 7 U.S.C. Sec. 136v(b). Like the preemption provision of the 1969 Cigarette Act, Sec. 136v(b) uses the...