In Carson v. Monsanto Company, No. 21-10994 (11th Cir. 2022), the Eleventh Circuit ruled on July 12, 2022, that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) did not preempt a failure to warn claim brought under Georgia law. Plaintiff’s failure to warn claim arose from claims of malignant fibrous histiocytoma that he alleges was from exposure to glyphosate, the active chemical in the Roundup brand of pesticide produced by defendant Monsanto. Plaintiff claimed that Roundup’s label failed to adequately warn of the harmful nature of glyphosate under Georgia law.

The Eleventh Circuit reviewed a ruling from the Southern District of Georgia that FIFRA, which requires pesticide manufacturers to submit a proposed label, as well as information on adverse health and environmental effects to the EPA for registration, preempted plaintiff’s state law failure to warn claim. For FIFRA to preempt state law, the relevant regulations must have been enacted with the force of law consistent with the test found in United States v. Mead Corp., 533 U.S. 218, (2001).

Under the Mead test, a common-law cause of action, such as the failure to warn claim under Georgia law, would be preempted only if the state requirement is for “labeling or packaging” under the language of the statute and the state requirement is “in addition to or different from” requirements derived from FIFRA. The Court found that the EPA’s registration process “is not sufficiently formal to carry with it the force of law” and instead “at most creates a rebuttable presumption of compliance with FIFRA’s registration process and nothing more.” The Court also found that the failure to warn claim is not in addition to or different from FIFRA requirements, but instead “simply enforces the FIFRA cause of action” and therefore were not preempted.

Although Monsanto presented several EPA documents indicating that it was not allowed to label Roundup as carcinogenic, the Court found that these documents did not have the “indicia of formality” necessary to meet their standard of review. The Eleventh Circuit remanded the case to the District Court for further proceedings on the failure to warn claim.

This ruling is consistent with rulings out of the Ninth Circuit finding that FIFRA did not preempt state law claims. See Hardeman v. Monsanto Co., No. 19-16636 (9th Cir. 2021); Pilliod v. Monsanto Co., No., No A158228 (Cal. Dist. Ct. App. 2021). The Supreme Court declined to hear either of these rulings. While these rulings represent wins for plaintiffs, juries in Oregon and Montana have recently ruled in favor of defendants in similar cases involving Roundup. See Johnson v. Monsanto Co., No 21CV20291 (Or. Cir. Ct. June 17, 2022); Shelton v. Monsanto, No. 1816-CV17026 (Mo. Cir. Ct. June 9, 2021).