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On January 16 the Supreme Court granted certiorari in Monsanto Co. v. Durnell (24-1068) to address the question of whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts pesticide label-related failure-to-warn claims where U.S. EPA does not require the warning at issue.
The answer to this question will affect state-law personal injury claims alleging that Monsanto (now Bayer) failed to include a cancer-warning on the U.S. EPA-regulated labels for its Roundup herbicide products.
As it did at the petition stage, ALF has filed an amicus brief urging the Court to reaffirm, and in so doing clarify, its holding in Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005), that FIFRA expressly preempts state-law failure-to-warn claims against pesticide manufacturers.
Case Background
Section 24(b) of FIFRA, 7 U.S.C. § 136v(b), titled “Uniformity,” expressly preempts a State from imposing pesticide labeling requirements that are “in addition to or different from” those imposed under the Act by EPA.
The Supreme Court held in Bates that § 136v(b) encompasses state-law, pesticide-related, failure-to-warn claims because they are “premised on common-law rules that qualify as ‘requirements for labeling’. . . they set a standard for a product’s labeling that the . . . label is alleged to have violated by containing . . . inadequate warnings.” 544 U.S. at 446. Despite the expansive language of § 136v(b), Bates carved out an exception for a “state-law labeling requirement . . . if it is equivalent to, and fully consistent with, FIFRA’s misbranding provisions.” Id. at 447.
From the day Bates was decided two decades ago, the personal injury bar has distorted and exploited this “‘parallel requirements’ reading of § 136v(b),” id., in an effort to render the preemption provision almost meaningless. According to the plaintiffs’ bar, § 136v(b) does not apply as long as a State imposes upon a manufacturer a general duty to warn about a product’s risks—a duty that is “parallel” to FIFRA’s general prohibition against distributing products that are “misbranded” due to inadequate label warnings. Virtually every State imposes such a general requirement.
As ALF's amicus brief explains, this simplistic argument fails to take into account the product-by-product manner in which EPA actually regulates pesticide products and their active ingredients and determines, based on scientific studies, what specific label warnings are, and are not, required.
In the case of Roundup, EPA has extensively studied the product's active ingredient, glyphosate, and has repeatedly concluded that it does not cause cancer in humans. In fact, EPA has notified glyphosate producers that adding a cancer warning to the labeling of pesticide products containing glyphosate would be false and misleading, and would violate FIFRA’s prohibition against distribution of misbranded pesticides. Yet, despite EPA’s science-based findings, the Roundup litigation is predicated on Monsanto’s failure to include a cancer warning on Roundup product labeling.
ALF Executive Vice President & General Counsel Larry Ebner, who authored the amicus brief, provides additional perspective on the FIFRA preemption issue in his recently published Law360 guest article, Justices' Monsanto Decision May Fix A Preemption Mistake.
ALF's Amicus Brief
ALF’s amicus brief explains that through § 136v(b), FIFRA promotes national labeling uniformity by vesting EPA with sole authority to regulate the content of a pesticide product’s labeling, including warnings.
The “parallel requirements” exception is not a license to impose a state tort duty to provide an additional label warning—especially since EPA repeatedly has rejected as scientifically unwarranted the cancer warning on which virtually all Roundup failure-to-warn claims are predicated. Instead, Bates indicates that this narrow exception merely enables imposition of a state-law remedy (in the absence of a federal remedy) for violation of federal labeling requirements, which are imposed by EPA on a product-specific basis.
A state tort duty to provide a Roundup cancer-related label warning that EPA repeatedly has rejected as scientifically unwarranted, and that EPA has cautioned glyphosate registrants would be false and misleading and a violation of FIFRA’s misbranding standards, cannot possibly be parallel or equivalent to, or in any way consistent with, EPA’s labeling requirements for Roundup.
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