Schoenhofer v. McClaskey
2017 U.S. App. LEXIS 11798
10th Cir.2017Background
- Kansas Admin. Regs. § 4-13-26 requires both horizontal and vertical chemical barriers in preconstruction termite pesticide applications and specifies many structural areas to be treated.
- Rogerson, a Kansas pest-control applicator, sued the Kansas Department of Agriculture seeking declaratory and injunctive relief, claiming the regulation is preempted by federal law (FIFRA) and by the Sherman Act.
- Rogerson relied on an EPA-approved label for a product (I Maxx Pro) that, he says, permits applicators to choose horizontal or vertical or both and limits required treatment to construction penetrations.
- Rogerson argued (1) FIFRA preempts the regulation because it conflicts with federally approved labels and (2) the regulation is a covert price-maintaining rule preempted by the Sherman Act.
- The district court rejected both claims; the Tenth Circuit affirmed, holding the regulation governs use (not labeling), does not conflict with the label, and that Rogerson conceded an essential element of his Sherman Act preemption claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 4-13-26 is preempted by FIFRA labeling preemption (7 U.S.C. § 136v(b)) | Rogerson: the regulation is effectively a labeling requirement that imposes stricter/different use directives than EPA-approved labels | State: the regulation governs pesticide use by applicators, not labeling/packaging, so § 136v(b) is inapplicable | Court: Not preempted by § 136v(b); regulation governs use, not labeling |
| Whether the regulation is impliedly preempted by FIFRA because it conflicts with EPA-approved labels | Rogerson: the regulation requires more or different uses than the label permits | State: the label permits both horizontal and vertical treatments and does not forbid treating additional areas; compliance with both is possible; states may regulate uses in some circumstances | Court: No conflict preemption; label permits the uses required by the regulation, so no impossibility/obstacle to federal objectives |
| Whether EPA-approved labels alone carry preemptive force over state use rules | Rogerson: EPA label controls and should preempt inconsistent state rules | State: Bates and related authority limit preemption to statutory/regulatory sources; labels alone likely lack preemptive force | Court: Even assuming labels could preempt, no actual conflict exists here; also noted statutory provisions allow certain state deviations and label defers to local regulations |
| Whether the regulation is preempted by the Sherman Act as an unlawful price-maintaining measure | Rogerson: mandating uniform (and excessive) treatments forces higher prices and restricts competition — a per se antitrust violation | State: the regulation is a governmental regulation, and the per se theory requires that the state statute mandate conduct that is always an antitrust violation | Court: Dismissed — Rogerson conceded there is no per se violation under current Supreme Court precedent; rule-of-reason claim cannot be resolved via preemption challenge |
Key Cases Cited
- Bates v. Dow Agrosciences LLC, 544 U.S. 431 (interpreting FIFRA preemption and labeling limits)
- Arizona v. United States, 567 U.S. 387 (framework for implied federal preemption)
- Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (rule of reason and per se antitrust principles)
- Fisher v. City of Berkeley, 475 U.S. 260 (state statutes preempted by antitrust law only if they mandate per se violations)
- Rice v. Norman Williams Co., 458 U.S. 654 (conflict-preemption principles applied to state regulation)
- Indian Brand Farms, Inc. v. Novartis Crop Prot. Inc., 617 F.3d 207 (lower-court discussion on limits of label preemption under Bates)