        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1074
CA 16-00211
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


MARY ESPOSITO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CONTEC, INC., DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


THE ROB COHEN LAW OFFICE, LLC, WILMETTE, ILLINOIS (ROBERT A. COHEN, OF
THE ILLINOIS BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND GREENE &
REID, PLLC, SYRACUSE, FOR PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA LLP, ALBANY (MATTHEW S. LERNER OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered April 24, 2015. The order, among
other things, granted the motion of defendant Contec, Inc. to dismiss
the amended complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in part and
reinstating the third, fifth, and sixth causes of action of the
amended complaint, as well as the fourth cause of action insofar as it
alleges theories of defective design and manufacture, and as modified
the order is affirmed without costs.

     Memorandum: In this action to recover damages for personal
injuries allegedly sustained by plaintiff as a result of the use of a
fungicide product manufactured by Contec, Inc. (defendant), plaintiff
appeals from an order that, among other things, dismissed plaintiff’s
amended complaint against defendant. Plaintiff contends that Supreme
Court erred in dismissing the amended complaint against defendant on
the ground that the amended complaint is preempted by the Federal
Insecticide, Fungicide, and Rodenticide Act ([FIFRA] 7 USC § 136 et
seq.). We agree with plaintiff with respect to the third, fifth, and
sixth causes of action of the amended complaint, as well as with
respect to those parts of her fourth cause of action that assert
claims on theories other than failure to warn. We modify the order
accordingly.

     The doctrine of federal preemption flows from the Supremacy
Clause of the Federal Constitution, which states that the laws of the
United States “shall be the supreme Law of the Land” (US Const, art
VI, cl 2). Under the doctrine, “[s]tate action may be foreclosed by
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                                                         CA 16-00211

express language in a congressional enactment” (Lorillard Tobacco Co.
v Reilly, 533 US 525, 541). State action includes both positive
enactments, such as statutes and regulations, and common-law rules and
obligations (see Cipollone v Liggett Group, Inc., 505 US 504, 521).
“In preemption analysis, courts should assume that ‘the historic
police powers of the States’ are not superseded ‘unless that was the
clear and manifest purpose of Congress’ ” (Arizona v United States,
___ US ___, ___, 132 S Ct 2492, 2501, quoting Rice v Santa Fe Elevator
Corp., 331 US 218, 230). “Congressional purpose is the ultimate
touchstone in determining whether federal law preempts a particular
state action” and, in searching for legislative intent to preempt, a
court must “examine the statute’s express objectives, its structure,
the plain meaning of its language, and its interpretation by the
courts” (Smith v Dunham-Bush, Inc., 959 F2d 6, 8 [internal quotation
marks omitted]; see FMC Corp. v Holliday, 498 US 52, 57; Allis-
Chalmers Corp. v Lueck, 471 US 202, 208).

      Generally, FIFRA and the regulations promulgated thereunder
impose approval and labeling requirements on manufacturers of
insecticides, fungicides, and rodenticides based on each product’s
effectiveness and potential harmfulness to humans. FIFRA also
establishes a complex process of review by the Environmental
Protection Agency (EPA), culminating in the approval of the label
under which the product is to be marketed and packaged (see 7 USC
§ 136a [c]; Worm v American Cyanamid Co., 5 F3d 744, 747). With
regard to the standards for such labeling and packaging, FIFRA
requires that a product not be “misbranded,” which requirement
precludes the product label from containing any statement that is
“false or misleading in any particular” (7 USC § 136 [q] [1] [A]), and
prohibits the omission from the label of any necessary instructions,
warnings, or cautionary statements (see 7 USC § 136 [q] [1] [F], [G];
see also 40 CFR § 156.10 [a] [5] [ii]). The preemption provision of
FIFRA provides that, “[i]n general[,] . . . a State may regulate the
sale or use of any federally registered pesticide or device in the
State, but only if and to the extent the regulation does not permit
any sale or use prohibited by this subchapter” (7 USC § 136v [a]). On
the other hand, FIFRA provides that, in the interest of
“[u]niformity[,] . . . [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 USC § 136v
[b]).

     Prior to 2005, many courts analyzing whether a state cause of
action was preempted by FIFRA applied the “inducement” test, under
which a state cause of action, irrespective of its legal theory, was
held to be preempted if a verdict in favor of the plaintiff might
induce the manufacturer to change its label on a product subject to
FIFRA regulation, even if such change were to be made voluntarily (see
e.g. DOW Agrosciences v Bates, 332 F3d 323, 331-333, vacated and
remanded 544 US 431; Andrus v AgrEvo USA, Co., 178 F3d 395, 399-400).
However, in its 2005 decision in Bates v DOW Agrosciences, the United
States Supreme Court clarified and significantly narrowed the FIFRA
preemption analysis, holding that the “inducement” test “finds no
support in the text” of section 136v (b) (Bates, 544 US at 445), and
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                                                         CA 16-00211

further holding that a state rule is preempted only to the extent that
it constitutes a “requirement[] for labeling and packaging” that is
“in addition to or different from those [things] required under
[FIFRA]” (id. at 444). The Supreme Court thus recognized that a state
rule is not preempted merely because it relates to labeling and
packaging while merely imposing requirements “equivalent” (id. at
453), or “parallel” (id. at 447) to those imposed by FIFRA. The Court
held, however, that nonfederal rules are preempted to the extent that
they impose “competing state labeling standards” (id. at 452).
“[I]magine” the difficulties for manufacturers, the Court noted, if
there existed “50 different labeling regimes prescribing the color,
font size, and wording of warnings” on nationally distributed products
(id.).

     Applying the foregoing standards to the claims pleaded in this
case, we conclude that the court properly granted defendant’s motion
to dismiss, on preemption grounds, plaintiff’s first and second causes
of action and those parts of her fourth cause of action asserting
failure to warn claims. The first and second causes of action allege
that defendant promoted or encouraged an unsafe use of its product and
thus failed to instruct users against such unsafe use. We conclude
that any jury verdict or court determination in favor of plaintiff on
those causes of action would amount to a state rule or requirement at
odds with the EPA-approved warning label on the product, i.e., a state
rule relating to labeling and packaging that would impose requirements
additional to or different from those imposed by the federal statute
and regulations. We reach the same conclusion with regard to the
fourth cause of action insofar as it alleges defendant’s strict
liability to plaintiff for “failing to provide adequate warnings” and
for “failing to provide adequate instruction and direction of a safe
use of the product” (see In re Syngenta AG MIR 162 Corn Litig., 131 F
Supp 3d 1177, 1207-1208; see generally Bates, 544 US at 452-454;
Villano v Builders Sq., 275 AD2d 565, 566-567; Wallace v Parks Corp.,
212 AD2d 132, 137).

     On the other hand, we conclude that the court erred in dismissing
the third, fifth, and sixth causes of action of plaintiff’s amended
complaint, as well as those parts of the fourth cause of action that
do not allege a failure to warn. Plaintiff’s causes of action and
claims alleging defendant’s breach of warranty, ordinary negligence,
and defective design and manufacture of its product, i.e., theories
unrelated to labeling or packaging, are not preempted by FIFRA (see
Bates, 544 US at 444-445; Mortellite v Novartis Crop Protection, Inc.,
460 F3d 483, 489-490; Wallace, 212 AD2d at 137).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
