Dowelanco

OVERVIEW

The district court dismissed Nathan Kimmel, Inc.’s (Kimmel) complaint on the ground that Kimmel’s state law claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FI-FRA”), 7 U.S.C. §§ 136 -136y. Kimmel appeals this decision by the district court. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and AFFIRM in part and REVERSE in part.

DISCUSSION

1. Background

Defendant-Appellee DowElanco is the manufacturer of Vikane, a pesticide used to exterminate termites. Vikane is regulated by the Environmental Protection Agency (“EPA”) and is required to carry an EPA-approved label. The Vikane label contains, among other things, instructions on the proper use of the pesticide. The use of Vikane in a manner inconsistent with its label is a violation of federal law.

Vikane is commonly used to fumigate areas containing food and medicine. The Vikane label states that when fumigating such areas, all food and medicine should either be removed from the area or placed in special protective bags. DowElanco owns the. trademark for one such protective bag, known as Nylofume. DowElanco has licensed the use of the Nylofume trademark to M & Q Plastics Products…