If Tennessee passes a law shielding pesticide manufacturers from failure-to-warn lawsuits when their labels comply with state and federal law (S.B. 527/H.B. 809), what tort claims would still survive, and would the law conflict with FIFRA?

Plain-English summary

Tennessee Attorney General Jonathan Skrmetti answered five questions from State Senator Mark Pody about Senate Bill 527 / House Bill 809, a 2025 proposal to shield pesticide manufacturers and sellers from certain civil suits. The bill says a manufacturer or seller of a pesticide registered with the state agriculture commissioner under Tenn. Code Ann. § 43-8-104 and registered with the EPA under FIFRA "is not liable in a civil action related to the labeling of the pesticide, including a products liability action alleging a failure to warn under title 29, chapter 28, if the pesticide bore a label approved by the EPA under FIFRA at the time of sale." The bill carves out cases where the pesticide was manufactured or sold in violation of FIFRA or Tennessee's pesticide statute.

Senator Pody asked whether labeling is an "essential element" of standard product liability theories (negligence, strict liability, breach of warranty, design defect, inadequate testing, inherently unsafe, deviation from intended design, breach of safety assurances), whether the bill provides a defense to such claims, whether injured persons could still sue, whether actions for damages discovered before vs. after EPA approval would be barred, and whether the bill violates 7 U.S.C. § 136a(f)(2).

The AG declined to give absolute answers to most questions because, in his view, they all depend on the specific allegations a future plaintiff might bring. The bill targets civil actions "related to the labeling" of a pesticide; whether a given claim is "related to the labeling" depends on the underlying theory and the facts pleaded. A "true design defect" claim that does not turn on labeling would survive; a failure-to-warn theory based on the label's content would not.

On the federal preemption question, the AG made two affirmative points:

• The bill does not "violate" 7 U.S.C. § 136a(f)(2). That federal provision says registration is not a defense to "any offense under this subchapter," meaning FIFRA's own enforcement scheme. It does not control state-law civil defenses. Plus, the proposed Tennessee bill explicitly does not apply if a pesticide is manufactured or sold in violation of FIFRA, so the registration-as-defense issue does not arise there either.
• Federal FIFRA preemption already gives compliant manufacturers a "powerful defense" against state failure-to-warn claims under Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005). The Solicitor General reinforced that view in a December 2025 amicus brief in Monsanto Co. v. Durnell. So the bill operates against a backdrop where some state-law mislabeling claims are already preempted as a matter of federal law.

What this means for you

If you are a Tennessee legislator considering the bill

The AG's responses tell you that the bill, as drafted, narrows liability where it overlaps with labeling but does not eliminate liability for non-labeling product defects. If your goal is broad immunity, the carve-outs (especially the "if a pesticide is manufactured or sold in violation of FIFRA" exception, which appears differently in a Senate Judiciary amendment) materially limit the shield. If your goal is to align Tennessee with the FIFRA preemption doctrine that Bates and the Solicitor General have articulated, the bill arguably codifies what federal courts already apply. Watch the Senate Judiciary amendment closely; the AG flagged that the carve-out language differs there from the introduced version, and the amendment language will determine real-world reach.

If you are a Tennessee farmer or pesticide applicator who has been injured

Read the bill carefully and follow its progress. If it passes in the introduced form, your ability to sue a manufacturer would still depend on the theory of injury. Defects in design or manufacturing that have nothing to do with the label would survive. Claims that the label failed to warn you about a known risk are the ones most directly affected. Talk to a Tennessee plaintiff-side attorney early; pleading a non-labeling theory carefully matters.

If you are a pesticide manufacturer or distributor in Tennessee

The bill, if enacted, would add state-law liability protection on top of federal FIFRA preemption. Existing labeling compliance with EPA standards is the threshold for both. Do not treat the bill as a free pass: the carve-out for sales "in violation of" FIFRA or § 43-8-104 means non-compliance with registration, label updates, or other regulatory duties undermines the shield. And design-defect or contractual-warranty exposure remains.

If you are a tort attorney pleading or defending a Tennessee pesticide case

The opinion is fact-specific by design. To survive a motion to dismiss under the proposed bill, plaintiffs need to plead theories that do not rely on the label's content, including specific design-defect, manufacturing-defect, contractual-warranty, or non-label-related conduct. Defendants will rely heavily on Bates v. Dow preemption already, and the bill (if enacted) layers on a Tennessee-law defense. Watch Monsanto v. Durnell in the U.S. Supreme Court; the SG's amicus brief frames the federal preemption baseline.

Common questions

Q: Is Tennessee's S.B. 527 / H.B. 809 already law?
A: No. The opinion was issued during the 114th General Assembly's consideration of the bill. Confirm current status in the Tennessee General Assembly's bill tracking before relying on this analysis as anything other than a description of the proposal as the AG saw it.

Q: What does the bill actually say?
A: As introduced, it provides that a manufacturer or seller of a registered pesticide "is not liable in a civil action related to the labeling of the pesticide, including a products liability action alleging a failure to warn under title 29, chapter 28, if the pesticide bore a label approved by the EPA under FIFRA at the time of sale." It carves out pesticides "manufactured or sold in violation of" Tenn. Code Ann. Title 43, Chapter 8 or FIFRA. A Senate Judiciary amendment changes the carve-out's wording.

Q: Does the bill bar all lawsuits against pesticide makers?
A: No. It bars only civil actions "related to the labeling" of the pesticide. Claims that don't depend on what the label says, like a true design-defect claim, a manufacturing-defect claim, or a non-label-based express-warranty claim, would not be barred by the bill's terms.

Q: Why does the AG keep saying answers depend on the facts?
A: Because whether a given lawsuit is "related to the labeling" turns on what the plaintiff actually alleges. A "negligence" claim might rest on the label, or it might not. A breach-of-warranty claim might point to the label, or to a separate sales-pitch document, or to the product's actual performance. The AG explicitly said evaluating preemption and the bill's scope requires "specific allegations detailed in a civil complaint or a robust factual record."

Q: Does FIFRA already preempt state failure-to-warn claims?
A: Partly. Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), held that FIFRA preempts state requirements that would impose labeling obligations diverging from FIFRA's own. The Solicitor General reaffirmed that reading in the December 2025 Monsanto v. Durnell amicus. State claims that effectively impose new labeling rules are preempted; some non-labeling state-law claims (true design defect, manufacturing defect) are not.

Q: Does the bill violate 7 U.S.C. § 136a(f)(2)?
A: No, the AG concluded. That federal subsection prevents EPA registration from being raised as a defense to "any offense under this subchapter," meaning FIFRA enforcement actions. It does not regulate state-law civil defenses, and the bill itself does not let a manufacturer use registration to escape FIFRA non-compliance.

Q: What about Wyeth v. Levine?
A: The AG cited Wyeth v. Levine, 555 U.S. 555 (2009), to illustrate that federal regulatory approval (there, FDA) does not always preempt state failure-to-warn claims. The reference shows the AG aware of the tension between regulatory compliance and state tort liability; he did not say Wyeth controls FIFRA. Bates is the FIFRA-specific authority.

Background and statutory framework

FIFRA, the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.), is the federal regime that registers and labels pesticides through the EPA. Tennessee maintains a parallel state-level pesticide labeling and registration scheme under Tenn. Code Ann. § 43-8-104. The proposed Tennessee bill ties civil-liability protection to compliance with both regimes at the time of sale.

The AG's analysis frames the policy tension this way: regulators establish detailed pre-market rules for what a label must say, and tort plaintiffs later argue, often through state failure-to-warn claims, that the label was inadequate despite federal compliance. Bates v. Dow Agrosciences LLC navigated that tension by holding that FIFRA preempts state requirements that would impose labeling obligations diverging from FIFRA's. The Solicitor General's December 2025 amicus brief in Monsanto Co. v. Durnell repeated that reading. The proposed Tennessee bill operates in the space Bates created: codifying a state-law defense for compliance, while acknowledging that some claims (those not tethered to labeling) remain viable.

The opinion also notes that Georgia (Ga. Code Ann. § 2-7-171) and North Dakota (N.D. Cent. Code § 28-01.3-11) have enacted similar pesticide-labeling sufficient-warning statutes, suggesting Tennessee's bill is part of a broader state legislative trend.

Citations and references

Statutes and bills:
- Tenn. Code Ann. § 43-8-104 (state pesticide labeling)
- 7 U.S.C. § 136 et seq. (FIFRA)
- 7 U.S.C. § 136a(f)(2) (registration not a defense for FIFRA offenses)
- Tenn. S.B. 527 / H.B. 809, 114th Gen. Assem. (2025) (proposed Tennessee pesticide-labeling liability shield)
- Ga. Code Ann. § 2-7-171
- N.D. Cent. Code § 28-01.3-11

Cases:
- Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (FIFRA preemption of state-law mislabeling claims)
- Wyeth v. Levine, 555 U.S. 555 (2009) (FDA approval does not always preempt state failure-to-warn claims)
- Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) (Supremacy Clause as the rule of decision in federal-state conflicts)
- Monsanto Co. v. Durnell, No. 24-1068 (U.S.) (Solicitor General amicus filed Dec. 1, 2025, on FIFRA preemption)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2026/op26-01.pdf

Original opinion text

Opinion No. 26-01
Scope of Proposed Legislation to Limit Civil Liability for Pesticide Manufacturers and
Is the presence, absence, or content of pesticide labeling in accordance with Tenn. Code
Ann. § 43-8-104 and/or the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") an
essential element of a claim against a manufacturer or seller of a pesticide that is based on one or
more of the following theories of liability: negligence; strict liability; breach of warranty; design
defect; inadequate testing; inherently unsafe for the intended use; deviation from intended design
during production; and assurances of product quality or safety?
Would passage of Senate Bill 527/House Bill 809 allow manufacturers to use labeling of a
pesticide in accordance with Tenn. Code Ann. § 43-8-104 and/or FIFRA as a defense against
If Senate Bill 527/House Bill 809 becomes law, will a person who is injured by a pesticide
that is labeled in accordance with Tenn. Code Ann. § 43-8-104 and/or FIFRA be able to maintain
a claim against the pesticide manufacturer? If yes, under which cause(s) of action and what
elements would the injured person have to prove to establish a claim under such cause of action
compared to the elements the injured person would have to prove to establish a claim based on
See response to Question 2. The viability of a given cause of action would depend on what
STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
January 13, 2026
Opinion No. 26-01
Scope of Proposed Legislation to Limit Civil Liability for Pesticide Manufacturers and
Sellers
Question 1
Is the presence, absence, or content of pesticide labeling in accordance with Tenn. Code
Ann. § 43-8-104 and/or the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") an
essential element of a claim against a manufacturer or seller of a pesticide that is based on one or
more of the following theories of liability: negligence; strict liability; breach of warranty; design
defect; inadequate testing; inherently unsafe for the intended use; deviation from intended design
during production; and assurances of product quality or safety?
Opinion 1
It depends on the specific allegations asserted against the manufacturer or seller.
Question 2
Would passage of Senate Bill 527/House Bill 809 allow manufacturers to use labeling of a
pesticide in accordance with Tenn. Code Ann. § 43-8-104 and/or FIFRA as a defense against
theories listed in Question 1?
Opinion 2
It depends on the specific allegations asserted against the manufacturer.
Question 3
If Senate Bill 527/House Bill 809 becomes law, will a person who is injured by a pesticide
that is labeled in accordance with Tenn. Code Ann. § 43-8-104 and/or FIFRA be able to maintain
a claim against the pesticide manufacturer? If yes, under which cause(s) of action and what
elements would the injured person have to prove to establish a claim under such cause of action
compared to the elements the injured person would have to prove to establish a claim based on
negligence for failure to warn?
Opinion 3
See response to Question 2. The viability of a given cause of action would depend on what
is alleged.
Question 4
Does Senate Bill 527/House Bill 809 bar civil actions for damages caused by a pesticide
that are discovered before a pesticide's label was approved or updated in accordance with Tenn.
Code Ann. § 43-8-104 and/or FIFRA? After a pesticide's label was approved or updated in
accordance with Tenn. Code Ann. § 43-8-104 and/or FIFRA?
Opinion 4
As specifically phrased, we do not think that either of the respective queries posed through
the above question admit definitive answers.
Question 5
Does Senate Bill 527/House Bill 809 violate 7 U.S.C. § 136a(f)(2)?
Opinion 5
No. The proposed legislation would not "violate" the referenced federal provision.
ANALYSIS
Like other measures recently enacted or considered in other States, the legislative proposal
at the center of the request seeks to provide civil liability protection related to pesticides. See
generally S.B. 527/H.B. 809, 114th Gen. Assem. (2025). The proposed legislation specifically
addresses "[t]he manufacturer or seller of a pesticide registered with the commissioner [of
agriculture] in accordance with § 43-8-104 and with the federal environmental protection agency
(EPA) under the federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. § 136 et
seq.)." Id. And it substantively provides that such a manufacturer or seller "is not liable in a civil
action related to the labeling of the pesticide, including a products liability action alleging a failure
to warn under title 29, chapter 28, if the pesticide bore a label approved by the EPA under FIFRA
at the time of sale." Id. Through a separate subsection, however, the proposed legislation states
that it "does not apply if a pesticide is manufactured or sold in violation of [Tennessee Code
Annotated, Title 43, Chapter 8] or FIFRA." Id.
This proposed law reflects a broader tension between holding a company accountable
through agency rules established before the company acts or through tort liability applied
retrospectively. In heavily-regulated industries in the United States, manufacturers often find
themselves in perilous waters between the Scylla of regulation and the Charybdis of litigation. Cf.,
e.g., Wyeth v. Levine, 555 U.S. 555, 581 (2009) (permitting tort claims against drug manufacturer
based on failure to warn even though the drug's labeling had been deemed sufficient by the federal
Food and Drug Administration). Regulators mandate in advance what companies should do, often
in great detail with respect to labeling, and trial lawyers spring into action on the back end to tell
the companies that what they did was not good enough to satisfy state law requirements. How this
tension plays out in practice depends heavily on the specific laws at issue and the specific facts in
a given case.
Questions of federal preemption are frequently at the center of this tension. Notably, the
United States Solicitor General was recently invited to offer his views on FIFRA preemption in a
failure to warn case and argued that the federal statute preempts a state law claim based on alleged
mislabeling. See Brief for the United States as Amicus Curiae at 1, 10, Monsanto Co. v. Durnell,
No. 24-1068 (U.S. Dec. 1, 2025). As he specifically explained, "FIFRA 'pre-empts any statutory
or common-law rule that would impose a labeling requirement that diverges from those set out in
FIFRA and its implementing regulations.'" Id. at 11 (quoting Bates v. Dow Agrosciences LLC,
544 U.S. 431, 452 (2005)). This line of analysis affords a powerful defense to manufacturers who
comply with their federal regulatory burden.
Here, the instant request poses several questions for our consideration against the backdrop
of the pending legislative proposal and FIFRA, but it does so, necessarily, in the absence of
specific allegations detailed in a civil complaint or a robust factual record. While we have carefully
considered the questions and attempted to answer them to the extent possible, the granular analysis
ultimately necessary to resolve the questions posed makes it regrettably difficult to provide useful
answers under these circumstances. We address the questions in turn below.
1. As phrased, the first question inquires into a hypothetical claim against a manufacturer
or seller of a pesticide that might be based on one or more of several listed legal theories. It
specifically asks whether the presence, absence, or content of pesticide labeling in accordance with
Tenn. Code Ann. § 43-8-104 and/or FIFRA would be an essential element of the asserted claim.
Although some of the listed legal theories might be predicated on the presence, absence, or content
of pesticide labeling when invoked in a lawsuit against a manufacturer or seller of a pesticide,
whether a given legal action would be somehow tethered to pesticide labeling would inevitably
depend on the specific allegations against the defendant.
2-3. Through its next two questions, the request seeks general guidance concerning the
proposed legislation's impact on state causes of action and whether the legislation would afford
pesticide manufacturers with a defense to liability. In short, although the proposed legislation
provides that manufacturers of registered pesticides are not liable in certain civil actions, it only
does so in relation to civil actions that are "related to the labeling" of a pesticide. Id. Therefore,
if an action against a manufacturer of a registered pesticide were not related to the labeling of the
pesticide, the proposed legislation would not work to prevent liability. But if an action were related
to the labeling of the pesticide, the proposed legislation might well prevent liability. Of course, a
civil action's relation to pesticide labeling would ultimately depend on the specifics of what a
given plaintiff might allege.
4. The fourth question poses two queries concerning whether the proposed legislation
would bar "civil actions" for damages "caused by a pesticide." The first query asks whether the
proposed legislation would bar actions when damages "are discovered before a pesticide's label
was approved or updated" in accordance with Tenn. Code Ann. § 43-8-104 and/or FIFRA. The
second query then asks whether the proposal would bar actions when damages are discovered
"[a]fter a pesticide's label was approved or updated."
We do not think that either query yields an absolute answer. Each would depend on the
facts of a given case. As stated in the proposed legislation, a manufacturer or seller of a registered
pesticide will not be liable in a civil action related to the labeling of the pesticide if the pesticide
bore an EPA-approved label under FIFRA "at the time of sale." Id. But such liability protection
wouldn't apply "if a pesticide is manufactured or sold in violation of [Tennessee Code Annotated,
Title 43, Chapter 8] or FIFRA." Id.
5. The final question in the request asks whether the proposed legislation violates 7 U.S.C.
§ 136a(f)(2), a statute which provides that "[i]n no event shall registration of an article be construed
as a defense for the commission of any offense under this subchapter." 7 U.S.C. § 136a(f)(2). It
doesn't. Setting aside the question's premise that a state statute can "violate" a federal one, §
136a(f)(2) simply speaks to whether something can be considered a defense "under" the federal
statutory scheme. Id. That § 136a(f)(2) forecloses a registration-based defense under the federal
scheme says nothing of state law actions and defenses. Moreover, the version of the proposed
legislation referenced within the request specifically states that its liability protection "does not
apply if a pesticide is manufactured or sold in violation of . . . FIFRA." S.B. 527/H.B. 809, 114th
Gen. Assem. (2025).
JONATHAN SKRMETTI
Attorney General and Reporter
J. MATTHEW RICE
Solicitor General
MATTHEW KERNODLE
Assistant Attorney General
Requested by:
The Honorable Mark A. Pody
State Senator
425 Rep. John Lewis Way North
Nashville, Tennessee 37243