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).
