August 2007

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

Should you need to discuss a energy regulation related matter, please contact Paul Vogel or John Goudy by e-mail or by telephone at (519) 672-9330.  If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

Insecticides - Buyer Beware !

As producers, farmers are also consumers. To maximize production, farmers are required to make decisions about which products will best promote crop growth. Where glossy brochures make claims about the advantages of using one product over another, and the product fails, can the farmer recover his loss?

In a recent decision by the Ontario Court of Appeal, the appellate upheld a trial decision dismissing the claim of four onion growers arising out of failure of an insecticide to prevent destruction of their crops by onion maggots. All four farmers had applied the insecticide to their crops in the spring in accordance with the manufacturer’s instructions. Brochures distributed by the manufacturer had contained favourable performance comparisons with a competitive product in prior years. However, in the year in question, the competitive product had been significantly more successful in preventing crop damage by onion maggots. In addition, the performance comparison contained in the brochures was based on 50 test sites for the competitive product but only 3 test sites for the insecticide which failed.

Although the trial judge had determined that, in the same crop season, onion crops planted in the growers’ region with the competitive product had suffered only minimal crop damage, he concluded that the damage to the plaintiffs’ crops had resulted from unusually cool and dry spring weather conditions which delayed the life cycle of the onion maggot. By the time the maggots emerged to feast on the onion crops, the insecticide which the plaintiffs had applied to their crops had degraded and was unsuccessful in protecting their crops from infestation. The plaintiffs lost 30 to 60% of their crops.

In dismissing the appeal, the appellate court refused to interfere with the findings of the trial judge. With respect to the manufacturer’s representations contained in the brochures, the appellate court commented:

“Accepting for the moment the appellants’ expectation that (the insecticide) would control onion maggots for the first generation, and accepting for the sake of that argument that the first generation endures for forty-five to sixty days, neither (the manufacturer or distributor) provided any express guarantee or representation that (the insecticide) would succeed in meeting these expectations irrespective of unusual climate conditions or other such variables. Indeed, the evidence established that the appellants, who were knowledgeable and informed growers, knew about the inherent challenges of maggot control and that results could vary considerably from year to year and from field to field, depending upon a number of factors...

Importantly, the appellants knew that insecticides dissipate in the soil at variable rates depending on the circumstances. The one test that indicated (the insecticide) dissipated at a concerning rate was acknowledged by the experts to be scientifically insignificant. There was no evidence or opinion that the dissipation rates given in the brochure were inaccurate or misleading. The only warranty provided was that (the insecticide) contained ten percent of its active ingredient, and the evidence established that the product sold to the appellants met and exceeded that standard.”

Like all consumers, farmers must be vigilant in their selection of the products which they purchase. Where manufacturers have made representations with respect to the advantages of their product, farmers must carefully assess and understand the scope and limitations of these representations before making their purchase decisions.