A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.

JUDICIAL: Includes FIFRA, pesticides

In Kissan Berry Farm v. Whatcom Farmers Coop, No. 82774-0-I (Wash. Ct. Apps. Sept. 6, 2022), a Washington State Court of Appeals considered whether the plaintiffs’ state law claims of express warranty were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Ultimately, the court concluded that the claims were not preempted. Preemption occurs when a higher authority of law will displace law set by a lower authority when the two conflict. In general, if federal law conflicts with state law, then the federal law will prevail. FIFRA is the main federal statute regulating pesticide use in the United States, and it contains several provisions that can impact whether or not a state law will be preempted when it comes into conflict with FIFRA.

This case began when five raspberry farms in Washington applied the herbicide Callisto to their crop according to the directions found in the Callisto label and experienced severe harm to their raspberries. The farms sued Syngenta, the manufacturer of Callisto, claiming that Syngenta had made a series of breaches of express warranty due to statements in the Callisto label that it was safe for use on raspberries. Syngenta argued that the claims were preempted by FIFRA. Under FIFRA, it is generally recognized that a pesticide’s approved label is the law, and that states are prohibited from making any labeling requirements that are “in addition to or different from” the requirements imposed by FIFRA. The lower court agreed with Syngenta, and found that the plaintiffs’ claims were preempted because they would have required Syngenta to make a change to the label based on state law. The plaintiffs appealed this decision. According to the appellate court, the plaintiffs’ breach of express warranty claims were not preempted due to United States Supreme Court precedent set in Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005). In that case, the Supreme Court found that a pesticide manufacturer who is found liable for state law breach of express warranty claims is not then induced to change their federally registered pesticide label. Therefore, FIFRA does not preempt state law claims for breach of express warranty. Accordingly, the Washington Court of Appeals reversed the lower court’s judgement and remanded the case.

REGULATORY: FWS, NOAA

FISH AND WILDLIFE SERVICE

Notice inviting the public to comment on applications to conduct certain activities with foreign species that are listed as endangered under the Endangered Species Act. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Proposed rule announcing a proposed rule to list the queen conch (Aliger gigas, previously known as Strombus gigas) as a threatened species under the Endangered Species Act. Info here.