Home » Case Summaries » 2002 » Nathan Kimmel, Inc. v. DowElanco


Nathan Kimmel, Inc. v. DowElanco



The Ninth Circuit held that a plaintiff’s state law claim for damages based on unenforced violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)[1] was preempted because allowing such claims would interfere with agency discretion and unduly burden regulated entities. FIFRA is a comprehensive regulatory scheme controlling the use, sale, and labeling of pesticides. FIFRA prohibits the knowing falsification of any application for the registration of a pesticide[2] and provides that EPA must approve all labels proposed by manufacturers.[3] FIFRA expressly forbids a state from imposing any requirements for labeling or packaging that are in addition to, or different from, those required by the Act.[4]

DowElanco manufactures the pesticide Vikane. During application of Vikane, food and drugs must be removed or protectively sealed in nylon polymer bags. When Nathan Kimmel, Inc. (Kimmel) informed DowElanco of its intention to manufacture these bags in competition with DowElanco’s brand, DowElanco petitioned EPA under FIFRA for a change in Vikane’s labeling. On the basis of allegedly erroneous information submitted by DowElanco, EPA approved the new label, which prohibited consumer use of Kimmel’s product, thereby securing DowElanco’s market advantage.

Kimmel sued DowElanco in federal court under diversity jurisdiction on a state tort law claim for injunctive relief and damages. The district court dismissed Kimmel’s complaint on a 12(b)(6) motion, holding that FIFRA preempted state law. The Ninth Circuit affirmed the district court “because ordinary conflict preemption principles dictate[d] that Kimmel’s state law claim [was] impliedly preempted by FIFRA.”[5]

The court relied on a recent Supreme Court decision, Buckman Co. v. Plaintiffs’ Legal Committee.[6] In Buckman, the plaintiff sued in state court to recover for medical injuries caused by bone screws, alleging that the manufacturer’s regulatory consultant had made fraudulent representations to gain FDA approval to market the screws.[7] The Court in Buckman held that allowing fraud-on-the-FDA claims for private injury under state tort law would interfere with FDA’s balancing of competing statutory objectives.[8] Further, allowing state law claims would burden applicants seeking FDA approval in ways not contemplated by Congress by exposing those applicants to diverse state standards.[9]

Following the Buckman Court’s reasoning, the Ninth Circuit found that allowing Kimmel’s state claims based on a FIFRA violation would interfere with EPA’s policy objectives and enforcement discretion. Although EPA did not challenge DowElanco’s misrepresentations, it was for the agency, not a jury, to police FIFRA’s labeling requirements. Because Kimmel’s state law claim was based solely on alleged violations of FIFRA under EPA’s purview, the court held the claim preempted. The court noted that Kimmel might be able to bring an administrative action within EPA or sue EPA itself under the Administrative Procedure Act.[10]

[1] 7 U.S.C. §§ 136-136y (2000).

[2] Id. § 136j(a)(2)(M).

[3] Id. § 136a(c)(1)(C).

[4] Id. § 136v(b).

[5] Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199, 1204 (9th Cir. 2002).

[6] 531 U.S. 341 (2001).

[7] Id. at 343.

[8] Id. at 348.

[9] Id. at 348-53.

[10] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

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