BATES et al. v. DOW AGROSCIENCES LLC

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
431 OCTOBER TERM, 2004
Syllabus
BATES et al. v. DOW AGROSCIENCES LLC
certiorari to the united states court of appeals for
the fifth circuit
No. 03–388. Argued January 10, 2005—Decided April 27, 2005
Petitioner Texas peanut farmers allege that their crops were severely
damaged by the application of respondent’s (Dow) “Strongarm” pesti-
cide, which the Environmental Protection Agency (EPA) registered pur-
suant to its authority under the Federal Insecticide, Fungicide, and Ro-
denticide Act (FIFRA). Petitioners gave Dow notice of their intent to
sue, claiming that Strongarm’s label recommended its use in all peanut-
growing areas when Dow knew or should have known that it would
stunt the growth of peanuts in their soil, which had pH levels of at least
7.0. In response, Dow sought a declaratory judgment in the Federal
District Court, asserting that FIFRA pre-empted petitioners’ claims.
Petitioners counterclaimed, raising several state-law claims sounding in
strict liability, negligence, fraud, and breach of express warranty. The
District Court rejected one claim on state-law grounds and found the
others barred by FIFRA’s pre-emption provision, 7 U. S. C. § 136v(b).
Affirming, the Fifth Circuit held that § 136v(b) expressly pre-empted
the state-law claims because a judgment against Dow would induce it
to alter its product label.
Held:
1. Under FIFRA, which was comprehensively amended in 1972, a
manufacturer must obtain permission to market a pesticide by sub-
mitting a proposed label and supporting data to EPA, which will
register the pesticide if it is efficacious, it will not cause unreasonable
adverse effects on humans and the environment, and its label complies
with the statute’s misbranding prohibition. A pesticide is “mis-
branded” if its label, for example, contains a statement that is “false or
misleading,” § 136(q)(1)(A), or lacks adequate instructions or warnings,
§§ 136(q)(1)(F), (G). A State may regulate the sale and use of federally
registered pesticides to the extent that regulation does not permit any
sales or uses prohibited by FIFRA, § 136v(a), but “[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 [FIFRA],”
§ 136v(b). Though tort litigation against pesticide manufacturers was a
common feature of the legal landscape in 1972, after this Court held in
Cipollone v. Liggett Group, Inc., 505 U. S. 504, that the term “require-
ment” in the Public Health Cigarette Smoking Act of 1969 included

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
432 BATES v. DOW AGROSCIENCES LLC
Syllabus
common-law duties, and therefore pre-empted certain tort claims
against cigarette companies, courts began holding that § 136v(b) pre-
empted claims such as petitioners’. Pp. 437–442.
2. FIFRA’s pre-emption provision applies only to state-law “require-
ments for labeling or packaging.” § 136v(b). While the Fifth Circuit
was correct that “requirements” embraces both positive enactments and
common-law duties, it erred in supposing that petitioners’ defective de-
sign, defective manufacture, negligent testing, and breach-of-express
warranty claims were premised on requirements for labeling or packag-
ing. None of the common-law rules upon which these claims are based
requires that manufacturers label or package their products in any par-
ticular way. The Fifth Circuit reached a contrary conclusion by reason-
ing that a finding of liability on these claims would induce Dow to alter
its label. This was error because the prohibitions of § 136v(b) apply
only to “requirements.” A requirement is a rule of law that must be
obeyed; an event, such as a jury verdict, that merely motives an optional
decision is not a requirement. The proper inquiry calls for an examina-
tion of the elements of the common-law duty at issue, not for speculation
as to whether a jury verdict will prompt the manufacturer to change its
label. Pp. 442–446.
3. Petitioners’ fraud and negligent-failure-to-warn claims, by contrast,
are based on common-law rules that qualify as “requirements for label-
ing or packaging,” since these rules set a standard for a product’s label-
ing that Dow is alleged to have violated. While these common-law
rules are subject to § 136v(b), it does not automatically follow that they
are pre-empted. Unlike the pre-emption clause in Cipollone, § 136v(b)
prohibits only state-law labeling requirements that are “in addition to
or different from” FIFRA’s labeling requirements. Thus, § 136v(b)
pre-empts any statutory or common-law rule that would impose a label-
ing requirement that diverges from those set out in FIFRA and its
implementing regulations. It does not pre-empt a state-law require-
ment that is equivalent to, and fully consistent with, FIFRA’s labeling
standards. This “parallel requirements” reading of § 136v(b) finds
strong support in Medtronic, Inc. v. Lohr, 518 U. S. 470. Thus, al-
though FIFRA does not provide a federal remedy to those injured as a
result of a manufacturer’s violation of FIFRA’s labeling requirements,
nothing in § 136v(b) precludes States from providing such a remedy.
Dow’s contrary reading of § 136v(b) fails to make sense of the phrase “in
addition to or different from.” Even if Dow offered a plausible alterna-
tive reading of § 136v(b), this Court would have a duty to accept the
reading disfavoring pre-emption. See New York State Conference of
Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655.
The long history of tort litigation against manufacturers of poisonous
substances adds force to the presumption against pre-emption, for Con-

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
433 Cite as: 544 U. S. 431 (2005)
Syllabus
gress surely would have expressed its intention more clearly if it had
meant to deprive injured parties of a long available form of compensa-
tion. Moreover, this history emphasizes the importance of providing
an incentive to manufacturers to use the utmost care in distributing
inherently dangerous items. Finally, the policy objections raised
against this Court’s reading of § 136v(b) are unpersuasive. Pp. 446–452.
4. Under the “parallel requirements” reading of § 136v(b), a state-law
labeling requirement must be equivalent to its federal counterpart to
avoid pre-emption. State law need not, however, explicitly incorporate
FIFRA’s standards as an element of a cause of action. Because this
Court has not received sufficient briefing on whether the Texas law gov-
erning petitioners’ fraud and failure-to-warn claims is equivalent to
FIFRA’s misbranding standards and any relevant regulations, it is up to
the Fifth Circuit to resolve the issue in the first instance. Pp. 453–454.
332 F. 3d 323, vacated and remanded.
Stevens, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ.,
joined. Breyer, J., filed a concurring opinion, post, p. 454. Thomas, J.,
filed an opinion concurring in the judgment in part and dissenting in part,
in which Scalia, J., joined, post, p. 455.
David C. Frederick argued the cause for petitioners.
With him on the briefs were Scott K. Attaway and Kimberly
S. Keller.
Seth P. Waxman argued the cause for respondent. With
him on the brief were David W. Ogden, Paul R. Q. Wolfson,
Dean T. Barnhard, and Joseph R. Alberts.
Lisa S. Blatt argued the cause for the United States as
amicus curiae urging affirmance. On the brief were Acting
Solicitor General Clement, Assistant Attorney General
Sansonetti, Deputy Solicitor General Hungar, Deputy As-
sistant Attorney General Clark, Jeffrey P. Minear, James C.
Kilbourne, and Kenneth Von Schaumburg.*
*Briefs of amici curiae urging reversal were filed for the State of Texas
et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor
General, Barry R. McBee, First Assistant Attorney General, Edward D.
Burbach, Deputy Attorney General, and Sean D. Jordan, Assistant Solici-
tor General, and by the Attorneys General for their respective States as
follows: Troy King of Alabama, Bill Lockyer of California, Richard Blu-

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
434 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
Petitioners are 29 Texas peanut farmers who allege that
in the 2000 growing season their crops were severely dam-
aged by the application of respondent’s newly marketed
pesticide named “Strongarm.” The question presented is
whether the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA), 7 U. S. C. § 136 et seq. (2000 ed. and Supp. II),
pre-empts their state-law claims for damages.
I
Pursuant to its authority under FIFRA, the Environmen-
tal Protection Agency (EPA) conditionally registered
Strongarm on March 8, 2000, thereby granting respondent
(Dow) permission to sell this pesticide—a weed killer 1 —in
menthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of
Iowa, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Jere-
miah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Eliot
Spitzer of New York, Jim Petro of Ohio, W. A. Drew Edmondson of Okla-
homa, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry
W. Kilgore of Virginia, and Christine O. Gregoire of Washington; for the
Association of Trial Lawyers of America by R. C. Westmoreland and Todd
A. Smith; for the Natural Resources Defense Council et al. by Patti Gold-
man, Grant Cope, Brian Wolfman, and Leslie Brueckner; for the Western
Peanut Growers Association et al. by Sean H. Donahue and David T.
Goldberg; and for Herbert Samuel Harrison by Mikal C. Watts.
Briefs of amici curiae urging affirmance were filed for the American
Chemistry Council by Richard O. Faulk; for BASF Corp. by Bruce Jones;
for the Chamber of Commerce of the United States by Alan Untereiner
and Robin S. Conrad; for Croplife America et al. by Lawrence S. Ebner
and Douglas T. Nelson; for E. I. Du Pont de Nemours and Co. et al. by
Viet D. Dinh; for the Product Liability Advisory Council, Inc., by Kenneth
S. Geller and Miriam R. Nemetz; for the Texas Chemical Council by Wil-
liam Powers, Jr., David M. Gunn, and Russell S. Post; for the Washington
Legal Foundation by Daniel J. Popeo; and for Edwin L. Johnson by David
E. Menotti.
James L. Moore, Glen Shu, Matthew W. Caligur, and Patrick Lysaught
filed a brief for the Defense Research Institute as amicus curiae.
1 Strongarm would more commonly be called a herbicide, but it is classi-
fied as a pesticide for purposes of FIFRA. See 7 U. S. C. §§ 136(t), (u).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
435 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
the United States. Dow obtained this registration in time
to market Strongarm to Texas farmers, who normally plant
their peanut crops around May 1. According to petition-
ers—whose version of the facts we assume to be true at this
stage—Dow knew, or should have known, that Strongarm
would stunt the growth of peanuts in soils with pH levels of
7.0 or greater.2 Nevertheless, Strongarm’s label stated,
“Use of Strongarm is recommended in all areas where pea-
nuts are grown,” App. 108, and Dow’s agents made equiva-
lent representations in their sales pitches to petitioners.
When petitioners applied Strongarm on their farms—whose
soils have pH levels of 7.2 or higher, as is typical in western
Texas—the pesticide severely damaged their peanut crops
while failing to control the growth of weeds. The farmers
reported these problems to Dow, which sent its experts to
inspect the crops.
Meanwhile, Dow reregistered its Strongarm label with
EPA prior to the 2001 growing season. EPA approved a
“supplemental” label that was for “[d]istribution and [u]se
[o]nly in the states of New Mexico, Oklahoma and Texas,”
id., at 179, the three States in which peanut farmers experi-
enced crop damage. This new label contained the following
warning: “Do not apply Strongarm to soils with a pH of 7.2
or greater.” Id., at 181.
After unsuccessful negotiations with Dow, petitioners
gave Dow notice of their intent to bring suit as required by
the Texas Deceptive Trade Practices-Consumer Protection
Act 3 (hereinafter Texas DTPA). In response, Dow filed a
declaratory judgment action in Federal District Court, as-
serting that petitioners’ claims were expressly or impliedly
pre-empted by FIFRA. Petitioners, in turn, brought coun-
terclaims, including tort claims sounding in strict liability
and negligence. They also alleged fraud, breach of war-
2 The term “pH,” which stands for pondus hydrogenii, or “potential hy-
drogen,” refers to the acidity of the soil.
3 Tex. Bus. & Com. Code Ann. § 17.01 et seq. (West 2002).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
436 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
ranty, and violation of the Texas DTPA. The District Court
granted Dow’s motion for summary judgment, rejecting one
claim on state-law grounds and dismissing the remainder as
expressly pre-empted by 7 U. S. C. § 136v(b), which provides
that States “shall not impose or continue in effect any re-
quirements for labeling or packaging in addition to or differ-
ent from those required under this subchapter.”
The Court of Appeals affirmed. It read § 136v(b) to pre-
empt any state-law claim in which “a judgment against Dow
would induce it to alter its product label.” 332 F. 3d 323,
331 (CA5 2003). The court held that because petitioners’
fraud, warranty, and deceptive trade practices claims focused
on oral statements by Dow’s agents that did not differ from
statements made on the product’s label, success on those
claims would give Dow a “strong incentive” to change its
label. Those claims were thus pre-empted. Id., at 331–332.
The court also found that petitioners’ strict liability claim
alleging defective design was essentially a “disguised”
failure-to-warn claim and therefore pre-empted. Id., at 332.
It reasoned: “One cannot escape the heart of the farmers’
grievance: Strongarm is dangerous to peanut crops in soil
with a pH level over 7.0, and that was not disclosed to
them. . . . It is inescapable that success on this claim would
again necessarily induce Dow to alter the Strongarm label.”
Id., at 332–333. The court employed similar reasoning to
find the negligent testing and negligent manufacture claims
pre-empted as well. Id., at 333.
This decision was consistent with those of a majority of
the Courts of Appeals,4 as well of several state high courts,5
but conflicted with the decisions of other courts 6 and with
4 See, e. g., Grenier v. Vermont Log Buildings, Inc., 96 F. 3d 559 (CA1
1996); Kuiper v. American Cyanamid Co., 131 F. 3d 656 (CA7 1997); Net-
land v. Hess & Clark, Inc., 284 F. 3d 895 (CA8 2002).
5 See, e. g., Etcheverry v. Tri-Ag Serv., Inc., 22 Cal. 4th 316, 993 P. 2d
366 (2000).
6 See, e. g., Ferebee v. Chevron Chemical Co., 736 F. 2d 1529 (CADC
1984); American Cyanamid Co. v. Geye, 79 S. W. 3d 21 (Tex. 2002).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
437 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
the views of EPA set forth in an amicus curiae brief filed
with the California Supreme Court in 2000.7 We granted
certiorari to resolve this conflict. 542 U. S. 936 (2004).
II
Prior to 1910 the States provided the primary and possibly
the exclusive source of regulatory control over the distribu-
tion of poisonous substances. Both the Federal Govern-
ment’s first effort at regulation in this area, the Insecticide
Act of 1910, 36 Stat. 331, and FIFRA as originally enacted
in 1947, ch. 125, 61 Stat. 163, primarily dealt with licensing
and labeling. Under the original version of FIFRA, all pes-
ticides sold in interstate commerce had to be registered with
the Secretary of Agriculture. The Secretary would register
a pesticide if it complied with the statute’s labeling standards
and was determined to be efficacious and safe.8 In 1970,
EPA assumed responsibility for this registration process.
In 1972, spurred by growing environmental and safety con-
cerns, Congress adopted the extensive amendments 9 that
“transformed FIFRA from a labeling law into a comprehen-
sive regulatory statute.” Ruckelshaus v. Monsanto Co., 467
U. S. 986, 991 (1984). “As amended, FIFRA regulated the
use, as well as the sale and labeling, of pesticides; regulated
pesticides produced and sold in both intrastate and interstate
commerce; provided for review, cancellation, and suspension
of registration; and gave EPA greater enforcement author-
ity.” Id., at 991–992. The 1972 amendments also imposed
7 See Brief for United States as Amicus Curiae in Etcheverry v. Tri-Ag
Serv., Inc., No. S072524 (Cal. Sup. Ct.) (hereinafter Brief Amicus Curiae
for United States in Etcheverry). The Acting Solicitor General has since
adopted a contrary position. See Brief for United States as Amicus
Curiae 20.
8 If the Secretary declined registration, and the manufacturer refused
to make changes, the Secretary was required to register the pesticide
“under protest.” In 1964, however, Congress eliminated this procedure,
and required disappointed manufacturers to challenge a denial of registra-
tion through administrative review. 78 Stat. 190.
9 Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973.

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
438 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
a new criterion for registration—environmental safety. Id.,
at 992. See generally 4 F. Grad, Treatise on Environ-
mental Law §§ 8.02–8.03 (2004) (tracing FIFRA’s statutory
evolution).
Under FIFRA as it currently stands, a manufacturer seek-
ing to register a pesticide must submit a proposed label
to EPA as well as certain supporting data. 7 U. S. C.
§§ 136a(c)(1)(C), (F). The agency will register the pesticide
if it determines that the pesticide is efficacious (with the ca-
veat discussed below), § 136a(c)(5)(A); that it will not cause
unreasonable adverse effects on humans and the environ-
ment, §§ 136a(c)(5)(C), (D); § 136(bb); and that its label com-
plies with the statute’s prohibition on misbranding,
§ 136a(c)(5)(B); 40 CFR § 152.112(f) (2004). A pesticide is
“misbranded” if its label contains a statement that is “false or
misleading in any particular,” including a false or misleading
statement concerning the efficacy of the pesticide. 7 U. S. C.
§ 136(q)(1)(A); 40 CFR § 156.10(a)(5)(ii). A pesticide is also
misbranded if its label does not contain adequate instructions
for use, or if its label omits necessary warnings or cautionary
statements. 7 U. S. C. §§ 136(q)(1)(F), (G).10
Because it is unlawful under the statute to sell a pesticide
that is registered but nevertheless misbranded, manufactur-
ers have a continuing obligation to adhere to FIFRA’s label-
ing requirements. § 136j(a)(1)(E); see also § 136a(f)(2) (reg-
istration is prima facie evidence that the pesticide and its
labeling comply with the statute’s requirements, but regis-
tration does not provide a defense to the violation of the
statute); § 136a(f)(1) (a manufacturer may seek approval to
10 A pesticide label must also conspicuously display any statement or
information specifically required by the statute or its implementing regu-
lations. 7 U. S. C. § 136(q)(1)(E). To mention only a few examples, the
label must contain the name and address of the producer, the prod-
uct registration number, and an ingredient statement. 40 CFR
§§ 156.10(a)(1)(ii), (iv), (vi) (2004).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
439 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
amend its label). Additionally, manufacturers have a duty
to report incidents involving a pesticide’s toxic effects that
may not be adequately reflected in its label’s warnings, 40
CFR §§ 159.184(a), (b) (2004), and EPA may institute cancel-
lation proceedings, 7 U. S. C. § 136d(b), and take other en-
forcement action if it determines that a registered pesticide
is misbranded.11
Section 136v, which was added in the 1972 amendments,
addresses the States’ continuing role in pesticide regulation.
As currently codified, § 136v provides:
“(a) In 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.
“(b) Uniformity
“Such 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.
“(c) Additional uses
“(1) A State may provide registration for additional
uses of federally registered pesticides formulated for
distribution and use within that State to meet special
local needs in accord with the purposes of this subchap-
ter and if registration for such use has not previously
been denied, disapproved, or canceled by the Adminis-
trator. Such registration shall be deemed registration
under section 136a of this title for all purposes of this
subchapter, but shall authorize distribution and use only
within such State. . . .”
11 EPA may issue “stop sale, use, or removal” orders and may seize of-
fending products. 7 U. S. C. §§ 136k(a), (b). Further, manufacturers may
be subjected to civil and criminal penalties for violating FIFRA’s require-
ments. § 136l.

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
440 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
In 1978, Congress once again amended FIFRA, 92 Stat.
819, this time in response to EPA’s concern that its evalua-
tion of pesticide efficacy during the registration process di-
verted too many resources from its task of assessing the
environmental and health dangers posed by pesticides.
Congress addressed this problem by authorizing EPA to
waive data requirements pertaining to efficacy, thus permit-
ting the agency to register a pesticide without confirming
the efficacy claims made on its label. § 136a(c)(5). In 1979,
EPA invoked this grant of permission and issued a general
waiver of efficacy review, with only limited qualifications not
applicable here. See 44 Fed. Reg. 27932 (1979); 40 CFR
§ 158.640(b) (2004). In a notice published years later in 1996,
EPA confirmed that it had “stopped evaluating pesticide ef-
ficacy for routine label approvals almost two decades ago,”
Pesticide Registration Notice 96–4, p. 3 (June 3, 1996), avail-
able at http://www.epa.gov/opppmsd1/PR_Notices/pr96-4.html,
App. 232, and clarified that “EPA’s approval of a pesticide
label does not reflect any determination on the part of EPA
that the pesticide will be efficacious or will not damage crops
or cause other property damage,” id., at 5, App. 235. The
notice also referred to an earlier statement in which EPA
observed that “ ‘pesticide producers are aware that they are
potentially subject to damage suits by the user community if
their products prove ineffective in actual use.’ ” Id., at 2,
App. 230 (quoting 47 Fed. Reg. 40661 (col. 2) (1982)). This
general waiver was in place at the time of Strongarm’s regis-
tration; thus, EPA never passed on the accuracy of the state-
ment in Strongarm’s original label recommending the prod-
uct’s use “in all areas where peanuts are grown.”
Although the modern version of FIFRA was enacted over
three decades ago, this Court has never addressed whether
that statute pre-empts tort and other common-law claims
arising under state law. Courts entertained tort litigation
against pesticide manufacturers since well before the pas-

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
441 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
sage of FIFRA in 1947,12 and such litigation was a common
feature of the legal landscape at the time of the 1972 amend-
ments.13 Indeed, for at least a decade after those amend-
ments, arguments that such tort suits were pre-empted by
§ 136v(b) either were not advanced or were unsuccessful.
See, e. g., Ferebee v. Chevron Chemical Co., 736 F. 2d 1529
(CADC 1984). It was only after 1992 when we held in Ci-
pollone v. Liggett Group, Inc., 505 U. S. 504, that the term
“requirement or prohibition” in the Public Health Cigarette
Smoking Act of 1969 included common-law duties, and there-
fore pre-empted certain tort claims against cigarette com-
panies, that a groundswell of federal and state decisions
emerged holding that § 136v(b) pre-empted claims like those
advanced in this litigation.
This Court has addressed FIFRA pre-emption in a differ-
ent context. In Wisconsin Public Intervenor v. Mortier,
501 U. S. 597 (1991), we considered a claim that § 136v(b)
pre-empted a small town’s ordinance requiring a special per-
mit for the aerial application of pesticides. Although the or-
dinance imposed restrictions not required by FIFRA or any
EPA regulation, we unanimously rejected the pre-emption
claim. In our opinion we noted that FIFRA was not
“a sufficiently comprehensive statute to justify an inference
that Congress had occupied the field to the exclusion of the
12 See, e. g., Mossrud v. Lee, 163 Wis. 229, 157 N. W. 758 (1916); West
Disinfecting Co. v. Plummer, 44 App. D. C. 345 (1916); McCrossin v. Noyes
Bros. & Cutler, Inc., 143 Minn. 181, 173 N. W. 566 (1919); White v. Na-
tional Bank of Commerce, 99 Cal. App. 519, 278 P. 915 (1929).
13 See Hursh, Annotation, Liability of Manufacturer or Seller for Injury
Caused by Animal Feed or Medicines, Crop Sprays, Fertilizers, Insecti-
cides, Rodenticides, and Similar Products, 81 A. L. R. 2d 138, 144 (1962)
(“A duty of due, reasonable care binds manufacturers and sellers of prod-
ucts of this kind. This duty of care includes a duty to warn of product-
connected dangers, a duty on the part of the manufacturer to subject the
product to reasonable tests, and a duty on the part of the seller to subject
the product to reasonable inspection” (footnotes omitted)) (collecting
cases).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
442 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
States.” Id., at 607. “To the contrary, the statute leaves
ample room for States and localities to supplement federal
efforts even absent the express regulatory authorization of
§ 136v(a).” Id., at 613.
As a part of their supplementary role, States have ample
authority to review pesticide labels to ensure that they com-
ply with both federal and state labeling requirements.14
Nothing in the text of FIFRA would prevent a State from
making the violation of a federal labeling or packaging re-
quirement a state offense, thereby imposing its own sanc-
tions on pesticide manufacturers who violate federal law.
The imposition of state sanctions for violating state rules
that merely duplicate federal requirements is equally con-
sistent with the text of § 136v.
III
Against this background, we consider whether petitioners’
claims 15 are pre-empted by § 136v(b), which, again, reads as
14 As EPA’s Website explains, “Federal law requires that before selling
or distributing a pesticide in the United States, a person or company must
obtain registration, or license, from EPA. . . . Most states conduct a review
of the pesticide label to ensure that it complies with federal labeling re-
quirements and any additional state restrictions of use.” EPA, Pesti-
cides: Regulating Pesticides, Evaluating Potential New Pesticides and
Uses, http://www.epa.gov/pesticides/regulating/index.htm (as visited Apr.
6, 2005, and available in Clerk of Court’s case file). See also 4 F. Grad,
Treatise on Environmental Law § 8.05, p. 8–140 (2004) (“All the state[s]
have some labeling requirements for pesticides, and these generally paral-
lel [FIFRA] of 1947”); id., at 8–143 to 8–218 (reviewing the pesticide stat-
utes of the 50 States).
15 The briefing and the record leave some confusion as to what precise
claims are at issue. In light of the posture of this case, we find it appro-
priate to address the following claims: breach of express warranty, fraud,
violation of the Texas DTPA, strict liability (including defective design
and defective manufacture), and negligent testing. We will also address
negligent failure to warn, since the Court of Appeals read petitioners’
allegations to support such a claim. But because petitioners do not press
such a claim here, we leave it to the court below to determine whether
they may proceed on such a claim on remand. Of course, we express no

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
443 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
follows: “Such 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.”
The introductory words of § 136v(b)—“Such State”—ap-
pear to limit the coverage of that subsection to the States
that are described in the preceding subsection (a). Texas is
such a State because it regulates the sale and use of federally
registered pesticides and does not permit any sales or uses
prohibited by FIFRA. It is therefore beyond dispute that
subsection (b) is applicable to this case.
The prohibitions in § 136v(b) apply only to “requirements.”
An occurrence that merely motivates an optional decision
does not qualify as a requirement. The Court of Appeals
was therefore quite wrong when it assumed that any event,
such as a jury verdict, that might “induce” a pesticide manu-
facturer to change its label should be viewed as a require-
ment. The Court of Appeals did, however, correctly hold
that the term “requirements” in § 136v(b) reaches beyond
positive enactments, such as statutes and regulations, to em-
brace common-law duties. Our decision in Cipollone sup-
ports this conclusion. See 505 U. S., at 521 (plurality opin-
ion) (“The phrase ‘[n]o requirement or prohibition’ sweeps
broadly and suggests no distinction between positive enact-
ments and common law; to the contrary, those words easily
encompass obligations that take the form of common-law
rules”); see also id., at 548–549 (Scalia, J., concurring in
judgment in part and dissenting in part). While the use of
“requirements” in a pre-emption clause may not invariably
carry this meaning, we think this is the best reading of
§ 136v(b).
That § 136v(b) may pre-empt judge-made rules, as well as
statutes and regulations, says nothing about the scope of that
view as to whether any of these claims are viable as a matter of Texas
law. Nor do we, given the early stage of this litigation, opine on whether
petitioners can adduce sufficient evidence in support of their claims to
survive summary judgment.

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
444 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
pre-emption. For a particular state rule to be pre-empted,
it must satisfy two conditions. First, it must be a require-
ment “for labeling or packaging”; rules governing the de-
sign of a product, for example, are not pre-empted. Second,
it must impose a labeling or packaging requirement that is
“in addition to or different from those required under this
subchapter.” A state regulation requiring the word “poi-
son” to appear in red letters, for instance, would not be pre-
empted if an EPA regulation imposed the same requirement.
It is perfectly clear that many of the common-law rules
upon which petitioners rely do not satisfy the first condition.
Rules that require manufacturers to design reasonably safe
products, to use due care in conducting appropriate testing
of their products, to market products free of manufacturing
defects, and to honor their express warranties or other con-
tractual commitments plainly do not qualify as requirements
for “labeling or packaging.” None of these common-law
rules requires that manufacturers label or package their
products in any particular way. Thus, petitioners’ claims for
defective design, defective manufacture, negligent testing,
and breach of express warranty are not pre-empted.
To be sure, Dow’s express warranty was located on
Strongarm’s label.16 But a cause of action on an express
warranty asks only that a manufacturer make good on the
contractual commitment that it voluntarily undertook by
placing that warranty on its product. 17 Because this
16 The label stated: “Dow AgroSciences warrants that this product con-
forms to the chemical description on the label and is reasonably fit for
the purposes stated on the label when used in strict accordance with the
directions, subject to the inherent risks set forth below.” App. 111.
17 To the extent that petitioners’ warranty and fraud claims are based
on oral representations made by Dow’s agents, they fall outside the text
of § 136v(b) for an independent reason. Because FIFRA defines labeling
as “all labels and all other written, printed, or graphic matter” that accom-
pany a pesticide, § 136(p)(2), any requirement that applied to a sales
agent’s oral representations would not be a requirement for “labeling or
packaging.”

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
445 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
common-law rule does not require the manufacturer to make
an express warranty, or in the event that the manufacturer
elects to do so, to say anything in particular in that warranty,
the rule does not impose a requirement “for labeling or pack-
aging.” See id., at 525–526 (plurality opinion).18
In arriving at a different conclusion, the court below rea-
soned that a finding of liability on these claims would “induce
Dow to alter [its] label.” 332 F. 3d, at 332.19 This effects-
based test finds no support in the text of § 136v(b), which
speaks only of “requirements.” A requirement is a rule of
law that must be obeyed; an event, such as a jury verdict,
that merely motivates an optional decision is not a require-
ment. The proper inquiry calls for an examination of the
elements of the common-law duty at issue, see Cipollone, 505
U. S., at 524 (plurality opinion); it does not call for specula-
tion as to whether a jury verdict will prompt the manufac-
turer to take any particular action (a question, in any event,
that will depend on a variety of cost/ benefit calculations best
left to the manufacturer’s accountants).
The inducement test is unquestionably overbroad because
it would impeach many “genuine” design defect claims that
Dow concedes are not pre-empted. A design defect claim,
if successful, would surely induce a manufacturer to alter its
label to reflect a change in the list of ingredients or a change
in the instructions for use necessitated by the improvement
18 The Court of Appeals held that petitioners’ claim under the Texas
DTPA was pre-empted insofar as the Act provides a remedy for the breach
of an express warranty. 332 F. 3d 323, 332 (CA5 2003) (citing Texas law).
Because petitioners’ warranty claim is not pre-empted, their claim under
the Act is not pre-empted to that extent.
19 Other Courts of Appeals have taken a similar approach. See, e. g.,
Netland, 284 F. 3d, at 900 (“Thus, our task is to determine whether Net-
land’s claims are essentially a challenge to Bovinol’s label or the overall
design of the pesticide. To guide our analysis, we must ask whether in
seeking to avoid liability for any error, would the manufacturer choose to
alter the label or the product”).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
446 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
in the product’s design. Moreover, the inducement test is
not entirely consistent with § 136v(a), which confirms the
State’s broad authority to regulate the sale and use of pesti-
cides.20 Under § 136v(a), a state agency may ban the sale of
a pesticide if it finds, for instance, that one of the pesticide’s
label-approved uses is unsafe. This ban might well induce
the manufacturer to change its label to warn against this
questioned use. Under the inducement test, however, such
a restriction would anomalously qualify as a “labeling” re-
quirement. It is highly unlikely that Congress endeavored
to draw a line between the type of indirect pressure caused
by a State’s power to impose sales and use restrictions and
the even more attenuated pressure exerted by common-law
suits. The inducement test is not supported by either the
text or the structure of the statute.
Unl ike their other clai ms, petiti oners’ fraud and
negligent-failure-to-warn claims are premised on common-
law rules that qualify as “requirements for labeling or pack-
aging.” These rules set a standard for a product’s labeling
that the Strongarm label is alleged to have violated by con-
taining false statements and inadequate warnings. While
the courts of appeals have rightly found guidance in Cipol-
lone’s interpretation of “requirements,” some of those courts
too quickly concluded that failure-to-warn claims were pre-
empted under FIFRA, as they were in Cipollone, without
paying attention to the rather obvious textual differences
between the two pre-emption clauses.21
20 In Wisconsin Public Intervenor v. Mortier, 501 U. S. 597 (1991), we
noted that § 136v(a) is merely declaratory of the authority that the States
retained after FIFRA; that provision did not “serve to hand back to the
States powers that the statute had impliedly usurped.” Id., at 614.
21 See, e. g., Taylor AG Industries v. Pure-Gro, 54 F. 3d 555, 559 (CA9
1995) (“There is no notable difference between the language in the 1969
Cigarette Act and the language in FIFRA”); Shaw v. Dow Brands, Inc.,
994 F. 2d 364, 371 (CA7 1993) (“Not even the most dedicated hair-splitter
could distinguish these statements”).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
447 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
Unlike the pre-emption clause at issue in Cipollone,22
§ 136v(b) prohibits only state-law labeling and packaging re-
quirements that are “in addition to or different from” the
labeling and packaging requirements under FIFRA. Thus,
a state-law labeling requirement is not pre-empted by
§ 136v(b) if it is equivalent to, and fully consistent with,
FIFRA’s misbranding provisions. Petitioners argue that
their claims based on fraud and failure to warn are not pre-
empted because these common-law duties are equivalent to
FIFRA’s requirements that a pesticide label not contain
“false or misleading” statements, § 136(q)(1)(A), or inade-
quate instructions or warnings. §§ 136(q)(1)(F), (G). We
agree with petitioners insofar as we hold that state law need
not explicitly incorporate FIFRA’s standards as an element
of a cause of action in order to survive pre-emption. As we
will discuss below, however, we leave it to the Court of Ap-
peals to decide in the first instance whether these particular
common-law duties are equivalent to FIFRA’s misbranding
standards.
The “parallel requirements” reading of § 136v(b) that we
adopt today finds strong support in Medtronic, Inc. v. Lohr,
518 U. S. 470 (1996). In addressing a similarly worded pre-
emption provision in a statute regulating medical devices,
we found that “[n]othing in [21 U. S. C.] § 360k denies Florida
the right to provide a traditional damages remedy for viola-
tions of common-law duties when those duties parallel fed-
eral requirements.” Id., at 495.23 As Justice O’Connor
22 “No requirement or prohibition based on smoking and health shall be
imposed under State law with respect to the advertising or promotion of
any cigarettes the packages of which are labeled in conformity with the
provisions of this [Act].” 15 U. S. C. § 1334(b); Cipollone, 505 U. S., at 515.
23 We added: “Even if it may be necessary as a matter of Florida law to
prove that those violations were the result of negligent conduct, or that
they created an unreasonable hazard for users of the product, such addi-
tional elements of the state-law cause of action would make the state re-
quirements narrower, not broader, than the federal requirement. While

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
448 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
explained in her separate opinion, a state cause of action that
seeks to enforce a federal requirement “does not impose a
requirement that is ‘different from, or in addition to,’ re-
quirements under federal law. To be sure, the threat of a
damages remedy will give manufacturers an additional cause
to comply, but the requirements imposed on them under
state and federal law do not differ. Section 360k does not
preclude States from imposing different or additional reme-
dies, but only different or additional requirements.” Id., at
513 (opinion concurring in part and dissenting in part). Ac-
cordingly, although FIFRA does not provide a federal rem-
edy to farmers and others who are injured as a result of a
manufacturer’s violation of FIFRA’s labeling requirements,
nothing in § 136v(b) precludes States from providing such a
remedy.
Dow, joined by the United States as amicus curiae, argues
that the “parallel requirements” reading of § 136v(b) would
“give juries in 50 States the authority to give content to
FIFRA’s misbranding prohibition, establishing a crazy-quilt
of anti-misbranding requirements different from the one de-
fined by FIFRA itself and intended by Congress to be inter-
preted authoritatively by EPA.” Brief for Respondent 16;
see also Brief for United States as Amicus Curiae 25–27.
In our view, however, the clear text of § 136v(b) and the au-
thority of Medtronic cannot be so easily avoided. Conspicu-
ously absent from the submissions by Dow and the United
States is any plausible alternative interpretation of “in addi-
tion to or different from” that would give that phrase mean-
ing. Instead, they appear to favor reading those words out
of the statute, which would leave the following: “Such State
shall not impose or continue in effect any requirements for
such a narrower requirement might be ‘different from’ the federal rules
in a literal sense, such a difference would surely provide a strange reason
for finding pre-emption of a state rule insofar as it duplicates the federal
rule.” 518 U. S., at 495.

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
449 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
labeling or packaging.” This amputated version of § 136v(b)
would no doubt have clearly and succinctly commanded the
pre-emption of all state requirements concerning labeling.
That Congress added the remainder of the provision is evi-
dence of its intent to draw a distinction between state label-
ing requirements that are pre-empted and those that are not.
Even if Dow had offered us a plausible alternative reading
of § 136v(b)—indeed, even if its alternative were just as plau-
sible as our reading of that text—we would nevertheless
have a duty to accept the reading that disfavors pre-emption.
“[B]ecause the States are independent sovereigns in our fed-
eral system, we have long presumed that Congress does not
cavalierly pre-empt state-law causes of action.” Medtronic,
518 U. S., at 485. In areas of traditional state regulation,
we assume that a federal statute has not supplanted state
law unless Congress has made such an intention “ ‘clear and
manifest.’ ” New York State Conference of Blue Cross &
Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655
(1995) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S.
218, 230 (1947)); see also Medtronic, 518 U. S., at 485. Our
reading is at once the only one that makes sense of each
phrase in § 136v(b) and the one favored by our canons of in-
terpretation. The notion that FIFRA contains a nonambig-
uous command to pre-empt the types of tort claims that par-
allel FIFRA’s misbranding requirements is particularly
dubious given that just five years ago the United States ad-
vocated the interpretation that we adopt today.24
The long history of tort litigation against manufacturers
of poisonous substances adds force to the basic presumption
against pre-emption. If Congress had intended to deprive
injured parties of a long available form of compensation, it
surely would have expressed that intent more clearly. See
24 Brief Amicus Curiae for United States in Etcheverry 33–35. See
also Brief for United States as Amicus Curiae 20 (explaining its subse-
quent change in view).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
450 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984).25
Moreover, this history emphasizes the importance of provid-
ing an incentive to manufacturers to use the utmost care in
the business of distributing inherently dangerous items.
See Mortier, 501 U. S., at 613 (stating that the 1972 amend-
ments’ goal was to “strengthen existing labeling require-
ments and ensure that these requirements were followed
in practice”). Particularly given that Congress amended
FIFRA to allow EPA to waive efficacy review of newly reg-
istered pesticides (and in the course of those amendments
made technical changes to § 136v(b)), it seems unlikely that
Congress considered a relatively obscure provision like
§ 136v(b) to give pesticide manufacturers virtual immunity
from certain forms of tort liability. Overenforcement of
FIFRA’s misbranding prohibition creates a risk of imposing
unnecessary financial burdens on manufacturers; under-
enforcement creates not only financial risks for consumers,
but risks that affect their safety and the environment as well.
Finally, we find the policy objections raised against our
reading of § 136v(b) to be unpersuasive. Dow and the
United States greatly overstate the degree of uniformity and
centralization that characterizes FIFRA. In fact, the stat-
ute authorizes a relatively decentralized scheme that pre-
serves a broad role for state regulation. See ibid. Most
significantly, States may ban or restrict the uses of pes-
ticides that EPA has approved, § 136v(a); they may also reg-
ister, subject to certain restrictions, pesticides for uses be-
yond those approved by EPA, § 136v(c). See also § 136w–1
(authorizing EPA to grant States primary enforcement re-
sponsibility for use violations). A literal reading of § 136v(b)
25 It is no answer that, even if all label-related claims are pre-empted
under Dow’s reading, other non-label-related tort claims would remain in-
tact. Given the inherently dangerous nature of pesticides, most safety
gains are achieved not through modifying a pesticide’s design, but by im-
proving the warnings and instructions contained on its label. See Brief
for American Chemistry Council as Amicus Curiae 3.

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
451 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
is fully consistent with the concurrent authority of the Fed-
eral and State Governments in this sphere.
Private remedies that enforce federal misbranding re-
quirements would seem to aid, rather than hinder, the func-
tioning of FIFRA. Unlike the cigarette labeling law at
issue in Cipollone, which prescribed certain immutable
warning statements, FIFRA contemplates that pesticide la-
bels will evolve over time, as manufacturers gain more infor-
mation about their products’ performance in diverse set-
tings. As one court explained, tort suits can serve as a
catalyst in this process:
“By encouraging plaintiffs to bring suit for injuries not
previously recognized as traceable to pesticides such as
[the pesticide there at issue], a state tort action of the
kind under review may aid in the exposure of new dan-
gers associated with pesticides. Successful actions of
this sort may lead manufacturers to petition EPA to
allow more detailed labelling of their products; alterna-
tively, EPA itself may decide that revised labels are re-
quired in light of the new information that has been
brought to its attention through common law suits. In
addition, the specter of damage actions may provide
manufacturers with added dynamic incentives to con-
tinue to keep abreast of all possible injuries stemming
from use of their product so as to forestall such actions
through product improvement.” Ferebee, 736 F. 2d, at
1541–1542.
Dow and the United States exaggerate the disruptive ef-
fects of using common-law suits to enforce the prohibition on
misbranding. FIFRA has prohibited inaccurate representa-
tions and inadequate warnings since its enactment in 1947,
while tort suits alleging failure-to-warn claims were common
well before that date and continued beyond the 1972 amend-
ments. We have been pointed to no evidence that such tort
suits led to a “crazy-quilt” of FIFRA standards or otherwise

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
452 BATES v. DOW AGROSCIENCES LLC
Opinion of the Court
created any real hardship for manufacturers or for EPA.
Indeed, for much of this period EPA appears to have wel-
comed these tort suits. While it is true that properly in-
structed juries might on occasion reach contrary conclusions
on a similar issue of misbranding, there is no reason to think
such occurrences would be frequent or that they would result
in difficulties beyond those regularly experienced by man-
ufacturers of other products that every day bear the risk
of conflicting jury verdicts. Moreover, it bears noting that
lay juries are in no sense anathema to FIFRA’s scheme:
In criminal prosecutions for violation of FIFRA’s provi-
sions, see § 136l(b), juries necessarily pass on allegations of
misbranding.
In sum, under our interpretation, § 136v(b) retains a nar-
row, but still important, role. In the main, it pre-empts
competing state labeling standards—imagine 50 different la-
beling regimes prescribing the color, font size, and wording
of warnings—that would create significant inefficiencies for
manufacturers.26 The provision also pre-empts any statu-
tory or common-law rule that would impose a labeling re-
quirement that diverges from those set out in FIFRA and
its implementing regulations. It does not, however, pre-
empt any state rules that are fully consistent with federal
requirements.
26 The legislative history of the 1972 amendments suggests that Con-
gress had conflicting state labeling regulations in mind when crafting
§ 136v(b). As one industry representative testified: “Some States might
want the word ‘flammable,’ some ‘inflammable.’ . . . Some States might
want red lettering; others orange, another yellow, and so forth. We ask
this committee, therefore, to recognize, as the Congress has in a number
of similar regulatory statutes, the industry’s need for uniformity by pro-
viding for this in the act.” Hearings on Federal Pesticide Control Act
of 1971 before the House Committee on Agriculture, 92d Cong., 1st
Sess., 281–283 (1971) (statement of Robert L. Ackerly). By contrast,
the lengthy legislative history is barren of any indication that Congress
meant to abrogate most of the common-law duties long owed by pesticide
manufacturers.

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
453 Cite as: 544 U. S. 431 (2005)
Opinion of the Court
Having settled on our interpretation of § 136v(b), it still
remains to be decided whether that provision pre-empts
petitioners’ fraud and failure-to-warn claims. Because we
have not received sufficient briefing on this issue,27 which
involves questions of Texas law, we remand it to the Court
of Appeals. We emphasize that a state-law labeling require-
ment must in fact be equivalent to a requirement under
FIFRA in order to survive pre-emption. For example, were
the Court of Appeals to determine that the element of falsity
in Texas’ common-law definition of fraud imposed a broader
obligation than FIFRA’s requirement that labels not contain
“false or misleading statements,” that state-law cause of ac-
tion would be pre-empted by § 136v(b) to the extent of that
difference. State-law requirements must also be measured
against any relevant EPA regulations that give content to
FIFRA’s misbranding standards. For example, a failure-
to-warn claim alleging that a given pesticide’s label should
have stated “DANGER” instead of the more subdued
“CAUTION” would be pre-empted because it is inconsistent
with 40 CFR § 156.64 (2004), which specifically assigns these
warnings to particular classes of pesticides based on their
toxicity.28
27 Dow does not seem to argue that, by their terms, Texas’ fraud and
failure-to-warn causes of action are not equivalent to FIFRA’s misbrand-
ing standards. Nor has Dow identified any EPA regulations that further
refine those general standards in any way that is relevant to petitioners’
allegations. Rather, Dow has chosen to mount a broader attack on the
“parallel requirements” interpretation, thus seeming to argue for the pre-
emption of even a state-law cause of action that expressly incorporates
FIFRA’s misbranding provisions. See Brief for Respondent 38, n. 25.
Since Dow did not have the benefit of our construction of § 136v(b), Dow
should be allowed to address these matters on remand.
28 At present, there appear to be relatively few regulations that refine
or elaborate upon FIFRA’s broadly phrased misbranding standards. To
the extent that EPA promulgates such regulations in the future, they will
necessarily affect the scope of pre-emption under § 136v(b).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
454 BATES v. DOW AGROSCIENCES LLC
Breyer, J., concurring
In undertaking a pre-emption analysis at the pleadings
stage of a case, a court should bear in mind the concept of
equivalence. To survive pre-emption, the state-law require-
ment need not be phrased in the identical language as its
corresponding FIFRA requirement; indeed, it would be sur-
prising if a common-law requirement used the same phrase-
ology as FIFRA. If a case proceeds to trial, the court’s jury
instructions must ensure that nominally equivalent labeling
requirements are genuinely equivalent. If a defendant so
requests, a court should instruct the jury on the relevant
FIFRA misbranding standards, as well as any regulations
that add content to those standards. For a manufacturer
should not be held liable under a state labeling requirement
subject to § 136v(b) unless the manufacturer is also liable for
misbranding as defined by FIFRA.
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Breyer, concurring.
I write separately to stress the practical importance of the
Court’s statement that state-law requirements must “be
measured against” relevant Environmental Protection
Agency (EPA) regulations “that give content to [the Federal
Insecticide, Fungicide, and Rodenticide Act’s (FIFRA)] mis-
branding standards.” Ante, at 453. In Medtronic, Inc. v.
Lohr, 518 U. S. 470 (1996), I pointed out that an administra-
tive agency, there the Food and Drug Administration, had
the legal authority within ordinary administrative con-
straints to promulgate agency rules and to determine the
pre-emptive effect of those rules in light of the agency’s spe-
cial understanding of “whether (or the extent to which) state
requirements may interfere with federal objectives.” Id., at
506 (opinion concurring in part and concurring in judgment).
The EPA enjoys similar authority here. See 7 U. S. C.

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
455 Cite as: 544 U. S. 431 (2005)
Opinion of Thomas, J.
§ 136w(a)(1). As suggested by Medtronic, the federal
agency charged with administering the statute is often bet-
ter able than are courts to determine the extent to which
state liability rules mirror or distort federal requirements.
Thus, the EPA may prove better able than are courts to de-
termine whether general state tort liability rules simply help
to expose “ ‘new dangers associated with pesticides,’ ” ante,
at 451 (quoting Ferebee v. Chevron Chemical Co., 736 F. 2d
1529, 1541 (CADC 1984)), or instead bring about a counter-
productive “ ‘crazy-quilt of anti-misbranding requirements,’ ”
ante, at 448 (quoting Brief for Respondent 16). And, within
appropriate legal and administrative constraints, it can act
accordingly. Cf. Hillsborough County v. Automated Medi-
cal Laboratories, Inc., 471 U. S. 707, 721 (1985) (agencies can
monitor the dynamic between federal and local requirements
and promulgate regulations pre-empting local legislation
that interferes with federal goals). Emphasizing the impor-
tance of the agency’s role in overseeing FIFRA’s future im-
plementation, I join the Court’s opinion.
Justice Thomas, with whom Justice Scalia joins, con-
curring in the judgment in part and dissenting in part.
I agree with the Court that the term “requirements” in
§ 24(b) of the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA), 7 U. S. C. § 136v(b), includes common-law du-
ties for labeling or packaging. Ante, at 443. I also agree
that state-law damages claims may not impose requirements
“in addition to or different from” FIFRA’s. Ante, at 452–
454. While States are free to impose liability predicated on
a violation of the federal standards set forth in FIFRA and
in any accompanying regulations promulgated by the Envi-
ronmental Protection Agency, they may not impose liability
for labeling requirements predicated on distinct state stand-
ards of care. Section 136v(b) permits States to add reme-
dies—not to alter or augment the substantive rules govern-
ing liability for labeling. See Medtronic, Inc. v. Lohr, 518

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
456 BATES v. DOW AGROSCIENCES LLC
Opinion of Thomas, J.
U. S. 470, 513 (1996) (O’Connor, J., concurring in part and
dissenting in part). Because the parties have not argued
that Dow violated FIFRA’s labeling standards,* the majority
properly remands for the District Court to consider whether
Texas law mirrors the federal standards.
However, the majority omits a step in its reasoning that
should be made explicit: A state-law cause of action, even if
not specific to labeling, nevertheless imposes a labeling re-
quirement “in addition to or different from” FIFRA’s when
it attaches liability to statements on the label that do not
produce liability under FIFRA. The state-law cause of ac-
tion then adds some supplemental requirement of truthful-
ness to FIFRA’s requirement that labeling statements not
be “false or misleading.” 7 U. S. C. § 136(q)(1)(A). That is
why the fraud claims here are properly remanded to deter-
mine whether the state and federal standards for liability-
incurring statements are, in their application to this case, the
same. See ante, at 453–454.
Under that reasoning, the majority mistreats two sets of
petitioners’ claims. First, petitioners’ breach-of-warranty
claims should be remanded for pre-emption analysis, con-
trary to the majority’s disposition, see ante, at 444–445. To
the extent that Texas’ law of warranty imposes liability for
statements on the label where FIFRA would not, Texas’ law
is pre-empted. See Cipollone v. Liggett Group, Inc., 505
U. S. 504, 551 (1992) (Scalia, J., concurring in judgment in
part and dissenting in part). Second, the majority holds
that petitioners’ claim under the Texas Deceptive Trade
Practices-Consumer Protection Act (DTPA) is not pre-
empted to the extent it is a breach-of-warranty claim. Ante,
at 445, n. 18. However, the DTPA claim is also (and, in fact,
perhaps exclusively) a claim for false or misleading represen-
tations on the label. App. 185–186. Therefore, all aspects
of the DTPA claim should be remanded. The DTPA claim,
*Petitioners’ counterclaim expressly disclaims that Dow violated any
provision of FIFRA. App. 192 (First Amended Counterclaim).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
457 Cite as: 544 U. S. 431 (2005)
Opinion of Thomas, J.
like petitioners’ fraud claims, should be pre-empted insofar
as it imposes liability for label content where FIFRA
would not.
I also note that, despite the majority’s reference to a
failure-to-warn claim, ante, at 442–443, n. 15, petitioners
have not advanced an actual failure-to-warn claim. Instead,
the Court of Appeals treated petitioners’ claims for negligent
testing and defective design and manufacture as “disguised
claim[s] for failure to warn.” 332 F. 3d 323, 332–333 (CA5
2003). If petitioners offer no evidence on remand that Dow
erred in the testing, design, or manufacture of Strongarm,
these claims will fail on the merits. On that point, I take
the majority to agree. Ante, at 442–443, n. 15.
We need go no further to resolve this case. The ordinary
meaning of § 136v(b)’s terms makes plain that some of peti-
tioners’ state-law causes of action may be pre-empted. Yet
the majority advances several arguments designed to tip the
scales in favor of the States and against the Federal Govern-
ment. These arguments, in addition to being unnecessary,
are unpersuasive. For instance, the majority states that the
presumption against pre-emption requires choosing the in-
terpretation of § 136v(b) that disfavors pre-emption. Ante,
at 449. That presumption does not apply, however, when
Congress has included within a statute an express pre-
emption provision. See Cipollone v. Liggett Group, Inc.,
supra, at 545–546 (Scalia, J., concurring in judgment in part
and dissenting in part); Nelson, Preemption, 86 Va. L. Rev.
225, 291–292, 298–303 (2000). Section 136v(b) is an explicit
statement that FIFRA pre-empts some state-law claims.
Thus, our task is to determine which state-law claims
§ 136v(b) pre-empts, without slanting the inquiry in favor of
either the Federal Government or the States.
The history of tort litigation against manufacturers is also
irrelevant. Ante, at 449–450. We cannot know, without
looking to the text of § 136v(b), whether FIFRA preserved
that tradition or displaced it. The majority notes that Con-

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
458 BATES v. DOW AGROSCIENCES LLC
Opinion of Thomas, J.
gress must have intended to preserve common-law suits, be-
cause the legislative history does not indicate that Congress
meant to abrogate such suits. Ante, at 452, n. 26; see also
Small v. United States, ante, at 406 (Thomas, J., dissenting)
(criticizing novel practice of relying on silence in the legisla-
tive history); Koons Buick Pontiac GMC, Inc. v. Nigh, 543
U. S. 50, 73–74 (2004) (Scalia, J., dissenting) (same). For
the Court, then, enacting a pre-emption provision is not
enough: Either Congress must speak with added specificity
in the statute (to avoid the presumption against pre-emption)
or some individual Members of Congress or congressional
committees must display their preference for pre-emption in
the legislative record (to avoid a new canon of congressional
silence). But the Court does not believe its own test, for it
agrees that § 136v(b) stands to abrogate many common-law
causes of action. On remand, for example, petitioners may
be unable to pursue a traditional common-law suit under
Texas’ law of fraud. Finally, while allowing additional
state-law remedies likely aids in enforcing FIFRA’s mis-
branding requirements, ante, at 451, it is for Congress, not
this Court, to strike a balance between state tort suits and
federal regulation.
Because we need only determine the ordinary meaning of
§ 136v(b), the majority rightly declines to address respond-
ent’s argument that petitioners’ claims are subject to other
types of pre-emption. Brief for Respondent 36–37. For in-
stance, the majority does not ask whether FIFRA’s regula-
tory scheme is “so pervasive,” and the federal interest in
labeling “so dominant,” that there is no room for States to
provide additional remedies. Rice v. Santa Fe Elevator
Corp., 331 U. S. 218, 230 (1947). Nor does the majority ask
whether enforcement of state-law labeling claims would
“stan[d] as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress” in enacting
FIFRA. Hines v. Davidowitz, 312 U. S. 52, 67 (1941).

544US2 Unit: $U44 [11-04-07 13:27:11] PAGES PGT: OPIN
459 Cite as: 544 U. S. 431 (2005)
Opinion of Thomas, J.
Today’s decision thus comports with this Court’s increas-
ing reluctance to expand federal statutes beyond their terms
through doctrines of implied pre-emption. See Camps New-
found/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564,
617 (1997) (Thomas, J., dissenting). This reluctance reflects
that pre-emption analysis is not “[a] freewheeling judicial in-
quiry into whether a state statute is in tension with federal
objectives,” Gade v. National Solid Wastes Management
Assn., 505 U. S. 88, 111 (1992) (Kennedy, J., concurring in
part and concurring in judgment), but an inquiry into
whether the ordinary meanings of state and federal law
conflict.