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Peterson v. BASF Corp.3/11/2003
the same as the statements on the label itself — both indicated that the product was safe for use on seed corn crops. Id.
Dahlman Farms does not further BASF's cause. Again, the farmers here were not asserting that BASF's registration and container labels were false or misleading, which was the heart of the Dahlman Farms consumer fraud claim. Rather, the farmers' point was that even if BASF's labels were technically accurate, BASF could and did commit consumer fraud by leading farmers to believe that the cheaper Poast Plus could only be used on major crops, when, in fact, it was EPA-registered for both major and minor crops. Consequently, the farmers' claims are not preempted.
Next, BASF notes that federal regulations permit "subset labeling," that is, labeling of a pesticide for fewer than all of the uses for which it is EPA-registered. Thus, BASF contends that its marketing of Poast and Poast Plus cannot be the basis for the jury's determination of fraud because it was proceeding lawfully under the federal regulations in registering Poast and Poast Plus as different products and in labeling Poast Plus for fewer than all of the crops for which it was registered with the EPA. The farmers move to strike this argument, contending that it was raised and decided by this court in Peterson I.
In Peterson I, this court specifically addressed the argument and noted that the farmers had presented evidence that the fraud was based not on BASF's lawful use of the regulations but on a plan that it designed "to conceal the fact that Poast Plus was EPA registered for use on minor crops and to discourage any off-label use of Poast Plus." 618 N.W.2d at 824. This court held that there was a genuine issue of material fact as to whether BASF's "system of deceit" fell within the protection of the NJCFA. Id. Thus, the issue has been resolved in the previous litigation and the farmers' motion to strike the argument is granted.
Further, to the extent that BASF challenges the sufficiency of the evidence on this issue, we hold that the jury could conclude that BASF's marketing scheme and exploitation of federal regulations, rather than its lawful use of federal regulations, concealed that Poast and Poast Plus were registered for the same uses and constituted fraud under the NJCFA.
Causation
The next issue concerns causation. " causal relationship must exist between the ascertainable loss and the unlawful practice" to establish a violation under the NJCFA. Roberts v. Cowgill, 719 A.2d 668, 672 (N.J. Super. Ct. App. Div. 1998). " nce a plaintiff has established a significant relationship" exists, the burden then shifts to the defendant to show that any particular losses do not have the requisite causal connection. Id. at 673. Even if the disputed commercial practice is not inherently deceptive, " he statutory and regulatory scheme is also designed to promote the disclosure of relevant information to enable the consumer to make intelligent decisions in the selection of products and services." Div. of Consumer Affairs v. Gen. Elec. Co., 582 A.2d 831, 833 (N.J. Super. Ct. App. Div. 1990).
BASF asserts that the farmers' theory of causation cannot stand as a matter of law. In Peterson I, however, this court recognized the basis for the farmers' claim for damages:
[The farmers] claim that they lost the opportunity to refuse to buy Poast because BASF's marketing scheme and exploitation of federal regulations concealed that Poast Plus was registered for the same uses as Poast. [Farmers'] reactions when they learned of BASF's scheme constitute circumstantial evidence that these farmers would not have stood idly by and paid inflated fees to BASF.
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