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Barnes v. Sandoz Crop Protection Corp.3/14/1997
supplied about the herbicide was inadequate, i.e., Sandoz failed to warn that Zorial would in fact, harm, not help, the cotton crop, it "'necessarily challenges the adequacy of the warnings provided on the product's labeling or packaging,'" and is therefore preempted. Taylor AG Industries, 54 F.3d 555, quoting Papas v. Upjohn Co., 985 F.2d 516, 519 (11th Cir.) (" Papas II "), cert. denied, 510 U.S. 913 (1993).
The third claim, based on A.R.S. § 47-2315, alleged that Sandoz breached the implied warranty for fitness because it "informed" the farm that Zorial would meet its "herbicide need." In Taylor AG Industries, the Ninth Circuit Court of Appeals affirmed the district court's ruling that FIFRA preempted the Arizona cotton farmers' state law claims against Pure-Gro, the manufacturer of two defoliant chemicals, holding, in pertinent part, that FIFRA preempted implied warranty claims, including those based on § 47-2315, "because the asserted implied warranties operate by state law to impose labeling requirements indirectly." 54 F.3d at 563. We adopt this reasoning here. If Sandoz, like Pure-Gro, "were to be liable for breach of an implied warranty of fitness for a particular purpose, that liability would be imposed by a state law requirement rather than by any voluntary action on the part of [Sandoz]. Therefore, an implied warranty of fitness for a particular purpose also constitutes a state law requirement and is preempted by FIFRA." Id. (citation omitted). Moreover, "to the extent the implied warranty claim depends upon inadequacies in labeling or packaging, FIFRA section 136v pre-empts the claim." Papas II, 985 F.2d at 520.
The farm's final claim alleged that Sandoz "expressly or impliedly warranted" that Zorial "was of merchantable quality when in fact it was not, that it was fit for customary use when in fact it was not, and that it was safe to cotton when applied by [Sandoz's] instructions when it was not and otherwise [would] meet [the farm's] needs when it did not." Additionally, the farm alleged these warranties were breached by "recommending, selling, distributing, designing, developing, manufacturing and supplying Zorial, a defective product. . . ." As we concluded above, the evidence is insufficient to show that Zorial is defective. In any event, the record contains no evidence of how Sandoz breached these warranties beyond the farm's assertion--which we hold is a disguised labeling claim--that Zorial was not fit for use in Arizona. Consequently, these warranty claims are preempted by FIFRA. See Taylor AG Industries ; Grenier v. Vermont Log Buildings, Inc., 96 F.3d 559 (1st Cir. 1996).
Affirmed.
WILLIAM E. DRUKE, Chief Judge
Concurring
JOHN PELANDER, Presiding Judge
JOSEPH M. LIVERMORE, Judge
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