REVISED, June 30, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-60611
Summary Calendar
____________________
TOMMY LEE ANDRUS,
Plaintiff-Appellant,
v.
AGREVO USA COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
June 28, 1999
Before KING, Chief Judge, and STEWART and PARKER, Circuit Judges.
KING, Chief Judge:
This appeal requires us to decide whether the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.
§§ 136-136y, preempts state law claims alleging that a herbicide
failed to perform as specified in its product label and that its
manufacturer breached its implied warranty of fitness for a
particular purpose. The magistrate judge granted the defendant
manufacturer summary judgment, finding that FIFRA preempts
plaintiff-appellant’s claims regarding the performance of the
herbicide and that Mississippi law does not recognize an implied
warranty of fitness for a particular purpose when the product is
purchased for its ordinary use. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-appellant Tommy Lee Andrus alleges that he applied
WHIP 360, a herbicide manufactured by defendant-appellee AgrEvo
USA Company (AgrEvo), to 280 acres of rice in 1995 to combat a
weed known as sprangletop. In doing so, Andrus claims, he relied
on the recommendation of Jeff Champion, an AgrEvo field
representative who viewed Andrus’s rice field and informed him
that WHIP 360 would effectively control “the spr[a]ngletop
problem.” Champion stated that he monitored closely Andrus’s
application of WHIP 360 to his field and that the application was
done in complete conformity with the WHIP 360 product label.
Andrus and Champion claim, however, that WHIP 360 not only failed
to control the sprangletop, but caused significant damage to
Andrus’s rice crop.
The WHIP 360 product label explains in detail how to apply
the herbicide and states that it is a “water emulsion formulation
for use in selective postemergence control of annual and
perennial grassy weeds in rice.” The label also asserts that
“[r]ice is tolerant to postemergence applications of WHIP 360
Herbicide from the 4-leaf to the late tillering stage of rice
development” and that although “[p]ostemergence applications may
result in temporary rice injury . . . . The rice will normally
recover from these symptoms in two to four weeks.”
Andrus filed this diversity suit in the United States
District Court for the Northern District of Mississippi on
2
February 6, 1997. Andrus alleges that the WHIP 360 product
failed to perform as specified on the product label, that Andrus
detrimentally relied on the specifications in the WHIP 360
product label, and that AgrEvo breached its implied warranty of
fitness for a particular purpose.1 The parties consented to
trial and entry of judgment by a United States Magistrate Judge
under 28 U.S.C. § 636(c).
AgrEvo moved for summary judgment on July 15, 1998. AgrEvo
asserted that Andrus’s claims were based on misleading,
inadequate or deficient labeling of the WHIP 360 product, and
that such claims are preempted by the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y.
AgrEvo also argued that Andrus could not prevail on his claim
that it had breached an implied warranty of fitness for a
particular purpose for the additional reason that Andrus had
purchased and employed WHIP 360 for its ordinary use, rather than
a particular purpose, and that such an implied warranty is not
created when goods are purchased for their ordinary use. Andrus
responded that FIFRA “has no application” to this suit because
his claims are based on “the failure of WHIP 360 to perform as
advertised on its label” and are not based on the label’s
1
Mississippi Code Annotated § 75-2-315 states in relevant
part:
Where the seller at the time of contracting has reason to
know any particular purpose for which the goods are required
and that the buyer is relying on the seller’s skill or
judgment to select or furnish suitable goods, there is an
implied warranty that the goods shall be fit for such
purpose.
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inadequacies. Andrus also argued that, to prevail on his implied
warranty claim, he needs only to demonstrate that Champion knew
of the purpose for which the herbicide was required and his
reliance on Champion’s skill or judgment to select the proper
herbicide.
The magistrate judge granted AgrEvo’s motion for summary
judgment on September 18, 1998. The magistrate judge found that
“[d]espite Andrus’s protestations that he is not complaining
about the label, his complaint states otherwise.” The magistrate
judge found that Andrus failed to plainly assert in his complaint
that the product is defective or that AgrEvo is strictly liable
for such a defect. Because Andrus’s performance and detrimental
reliance claims are linked to the specifications in the label,
the district court found them preempted and granted summary
judgment. The magistrate judge also granted AgrEvo summary
judgment on the implied warranty claim, finding that “Mississippi
law and the prevailing view in other states is that a particular
purpose means a purpose other than its ordinary use” and that
Andrus offered no evidence suggesting he purchased WHIP 360 for
any use other than its ordinary use.2 Andrus timely appeals.
II. DISCUSSION
2
Andrus argues on appeal that the magistrate judge
“misinterpreted Mississippi law . . . as meaning that when a
product is sold for an ordinary use there can be no implied
warranty of fitness for a particular use.” Because we conclude
that FIFRA preempts Andrus’s implied warranty claim, however, we
affirm the magistrate judge’s determination that AgrEvo is
entitled to summary judgment without reaching Andrus’s arguments
as to whether a “particular purpose” may include an “ordinary
use” under Mississippi law.
4
Andrus argues that the magistrate judge erred in holding
that his performance claims are preempted under FIFRA. Andrus
contends that FIFRA does not apply here because the elements of
his claims do not require proof that the WHIP 360 label should
have included additional or different warnings from those
required by FIFRA. As he argued to the magistrate judge below,
Andrus asserts that his claims are not based on the inadequacies
of the label, but rather on the failure of the herbicide to
perform as advertised on that label and as recommended by
Champion.3
We review the district court’s grant of summary judgment de
novo. See Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608
(5th Cir. 1998). Summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986). Although we can affirm a grant of summary judgment
on grounds on which the district court did not rely, those
grounds must have been proposed or asserted by the movant in that
3
Andrus also argues that WHIP 360 failed to perform “as
otherwise advertised.” Andrus offers no indication what “other”
advertisement he is referring to, and he introduced no evidence
to the district court of any advertisement other than the product
label. In fact, Andrus testified in his deposition that he was
provided no sales materials or advertisements and had read
nothing in writing concerning WHIP 360. We therefore consider
only Andrus’s arguments that WHIP 360 failed to perform as
represented on the label and by Champion.
5
court. See Johnson v. Sawyer, 120 F.3d 1307, 1316 (5th Cir.
1997); Brown v. CSC Logic, Inc., 82 F.3d 651, 653-54 (5th Cir.
1996) (noting that we “may affirm the district court’s grant of
summary judgment on any ground raised to the district court and
upon which both parties had the opportunity to present
evidence”).
FIFRA creates a comprehensive regulatory scheme for
pesticide and herbicide labeling. See Wisconsin Pub. Intervenor
v. Mortier, 501 U.S. 597, 601 (1991). Under its provisions, all
herbicides sold in the United States must be registered with the
Environmental Protection Agency (EPA). See 7 U.S.C. § 136a(a).
FIFRA also establishes a complex process of EPA review that
culminates in the approval of the label under which the product
is to be marketed. See id. § 136a(c); Worm v. American Cyanamid
Co., 5 F.3d 744, 747 (4th Cir. 1993). A pesticide manufacturer
must submit a “statement of all claims to be made for” the
herbicide as well as directions for its use, its ingredients, and
its adverse effects. 7 U.S.C. § 136a(c); see 40 C.F.R. § 152.50
& pt. 156. The EPA then registers the herbicide if it determines
that its composition is such as to warrant the proposed claims
for it, that its labeling complies with FIFRA requirements, that
it will perform its intended function without unreasonable
adverse effects on the environment, and, when used in accordance
with widespread practice, that it will not generally cause
unreasonable adverse effects on the environment. See 7 U.S.C.
§ 136a(c)(5). Finally, the statute provides that states “shall
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not impose or continue in effect any requirements for labeling or
packaging in addition to or different from those required under”
FIFRA. Id. § 136v(b).
We considered the preemptive effect of FIFRA and § 136v(b)
on state common law damage claims based upon a manufacturer’s
failure to properly label herbicides and warn of dangers
associated with their use in MacDonald v. Monsanto Co., 27 F.3d
1021 (5th Cir. 1994). We determined that the language of the
statute, together with the Supreme Court’s recent guidance on
preemption in Cipollone v. Liggett Group, Inc., 505 U.S. 504
(1992), “leaves no doubt but that the FIFRA term ‘any
requirements’ makes no distinction between positive enactments
and the common law.” MacDonald, 27 F.3d at 1024. Although we
recognized that not all common law claims relating to herbicides
are preempted by FIFRA--“[section] 136v(b) does not preempt
common law that is unconcerned with herbicide labeling, nor does
it preempt those state laws concerned with herbicide labeling
that do not impose any requirement in addition to or different
from the FIFRA requirements”--section 136v(b) does preempt those
state laws that “impose or effect different or additional
labeling requirements.” Id. at 1024-25 (internal quotation marks
omitted). Because the “undeniable practical effect” of
MacDonald’s recovering a large damage award on his claims that
the manufacturer failed to meet state labeling requirements and
failed to warn MacDonald of potential adverse effects would be
the imposition of additional labeling standards not mandated by
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FIFRA, we concluded that such claims are preempted. Id. at 1025.
Our sister circuits have applied a similar test to claims
that affect the labeling of a product regulated under FIFRA. For
example, the Fourth Circuit considered in Worm whether a
plaintiff’s claims that a herbicide manufacturer negligently
manufactured a herbicide, failed to warn of adverse consequences,
and breached express and implied warranties were preempted under
FIFRA. See 5 F.3d at 746. The court determined that although
[t]he line between a claim for mislabeling [that is
preempted] and a claim for a defective product [that is not
preempted] may not always be clear . . . . [T]he issue may
nevertheless be resolved by looking to, as one factor,
whether one could reasonably foresee that the manufacturer,
in seeking to avoid liability for the error, would choose to
alter the product or the label.
Id. at 747-48. The court ultimately affirmed the district
court’s grant of summary judgment in favor of the herbicide
manufacturer, noting that “[t]o the extent that the Worms’ claims
challenge, by whatever state cause of action, the adequacy of
information provided by American Cyanamid on its labeling, the
claims are preempted by FIFRA.” Id. at 749; see also Grenier v.
Vermont Log Bldgs., Inc., 96 F.3d 559, 564 (1st Cir. 1996)
(holding express warranty claim preempted because “[t]o premise
liability on the inaccuracy of the statement [on the label] is in
substance to determine that a different statement should have
been made in the labeling”); Welchert v. American Cyanamid, Inc.,
59 F.3d 69, 72 (8th Cir. 1995) (stating that express warranty
claim “based entirely on the label’s statement with regard to the
herbicide’s . . . effect” is preempted); Taylor AG Indus. v.
8
Pure-Gro, 54 F.3d 555, 563 (9th Cir. 1995) (“‘[T]o the extent the
implied warranty claim depends upon inadequacies in labelling or
packaging, FIFRA section 136v pre-empts the claim.’”) (quoting
Papas v. Upjohn Co., 985 F.2d 516, 520 (11th Cir. 1993))
(alteration in original).
The magistrate judge found that FIFRA preempts Andrus’s
performance and detrimental reliance claims because “[i]n every
instance the defects alleged [in Andrus’s complaint] are linked
to the specifications set forth in the label.” We agree with the
magistrate judge’s analysis, but we conclude that Andrus’s claim
that AgrEvo breached its implied warranty of fitness for a
particular purpose is similarly preempted. See Taylor AG Indus.,
54 F.3d at 563 (stating that “an implied warranty of fitness for
a particular purpose also constitutes a state law requirement and
is preempted by FIFRA” to the extent it depends on inadequacies
in labeling or packaging). Andrus claims in his complaint that
WHIP 360 “failed to perform as specified pursuant to the label”
and that Andrus “relied to his detriment on the specifications
pursuant to the Whip 360 product label.” Furthermore, Andrus
argues on appeal that his claims are based “on the failure of
Whip 360 to perform as advertised on its label.” Andrus’s claims
are obviously based on the contents of the WHIP 360 label, and
any adverse judgment would have the “undeniable practical effect”
of imposing additional labeling standards on AgrEvo.
Andrus attempts to save his claims from preemption by
arguing that they are also based on the failure of WHIP 360 to
9
perform “as selected and recommended by [AgrEvo’s] corporate
representative, Jeff Champion.” Andrus relies on an affidavit
that he attached to his response opposing AgrEvo’s motion for
summary judgment in which Champion states that he recommended
that Andrus apply WHIP 360 “as an effective control for the
spr[a]ngletop problem” and Andrus’s deposition testimony that
Champion stated that WHIP 360 “would handle our problem.”
Andrus “cannot automatically avoid FIFRA preemption simply
because [he] challenge[s] alleged misrepresentations that were
made separately from the label.” Kuiper v. American Cyanamid
Co., 131 F.3d 656, 662 (7th Cir. 1997). The Seventh Circuit held
that even off-label statements are preempted if they merely
repeat information contained in the label. See id. at 662-63.
The court found that
[a]ccording to the Fourth Circuit, when advertising or
promotional materials merely repeat information or language
contained in the label, claims directed at the advertising
necessarily challenge the label itself and are therefore
preempted. The Ninth and Eleventh Circuits go farther,
holding that “any claims that point-of-sale signs, consumer
notices, or other informational materials failed adequately
to warn the plaintiff necessarily challenge the adequacy of
the warnings provided on the product’s labeling or
packaging” and therefore are preempted. Under both
approaches, FIFRA preempts state law claims when the
challenged advertising merely reiterates the label. The
difference is that the Fourth Circuit holds that FIFRA
allows state law claims against advertisements that
“substantially differ” from the label, while the Ninth and
Eleventh Circuits hold that FIFRA preempts these claims as
well.
Id. (citations omitted).
We do not need to choose between the two approaches outlined
in Kuiper because we determine that Andrus’s evidence failed to
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raise a genuine issue of material fact suggesting that Champion’s
advice differed from the contents of the WHIP 360 product label.
The WHIP 360 label states that WHIP 360 is for use in controlling
“annual and perennial grassy weeds in rice,” and includes a table
recommending an appropriate quantity for use against sprangletop.
Because Andrus introduced no evidence demonstrating that Champion
provided any advice not contained on the WHIP 360 product label,
Andrus cannot rely on this advice to avoid preemption under
FIFRA. Thus, the magistrate judge properly granted AgrEvo
summary judgment on all of Andrus’s claims.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment.
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