On August 15, 2024 the United States Court of Appeals for the Third Circuit held in David Schaffner, Jr. and Theresa Sue Schaffner v. Monsanto Corporation, 113 F.4th 364 (3d Cir. 2024) that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preempted the Plaintiffs’ Pennsylvania state law failure to warn claims. The Third Circuit’s ruling reverses the decision of the United States District Court for the Western District of Pennsylvania and creates a circuit split with the Ninth and Eleventh Circuit Courts of Appeals.

Plaintiffs David and Theresa Schaffer brought Pennsylvania state law failure to warn and loss of consortium claims against Monsanto in Pennsylvania state court. The Schaffer’s claimed that Monsanto failed to provide a warning label on its Roundup pesticide product stating that glyphosate, the primary ingredient in Roundup, was carcinogenic. David Schaffer was diagnosed with non-Hodgkin’s lymphoma after using Roundup in his work as a professional landscaper.

After Monsanto removed the case to the United States District Court for the Western District of Pennsylvania, the case was eventually remanded after a series of transfers between it and the California court overseeing the Roundup multi-district litigation. The case was remanded on the grounds that FIFRA did not preempt the state law failure to warn claims. Monsanto appealed the lower court’s decision to the Third Circuit.

In ruling that FIFRA preempts state law, the Third Circuit found that FIFRA prohibits states from imposing pesticide labeling requirements in addition to or different than those required by FIFRA. The EPA, which oversees enforcement of FIFRA, prohibited Monsanto from including a cancer warning in its labeling for Roundup. The Third Circuit determined that imposing a state law requiring a cancer warning would effectively impose requirements that differed from FIFRA’s requirements, as interpreted by the EPA.

Both the Eleventh and Ninth Circuits have ruled differently on this issue, with both determining that the EPA’s regulations for pesticide labeling approval were not sufficiently formal to carry the force of federal law that may preempt state law. See Carson v. Monsanto Co., No. 21-10994 (11^th Cir. 2022); Hardeman v. Monsanto Co., No. 19-16636 (9^th Cir. 2021). Rather, the EPA’s registration process for labeling only created a rebuttable presumption of compliance with FIFRA. As such, the state law failure to warn claims in those cases were not in addition to, or different from, FIFRA requirements. Instead, the Ninth and Eleventh Circuits ruled that the state law failure to warn claims merely enforced the FIFRA cause of action and were not preempted.

In light of the circuit split, Bayer, who purchased Monsanto in 2018, has called for the Supreme Court to clarify the issue. Such clarification would have a significant impact on the nationwide litigation concerning Roundup products, allowing for more of those cases to be heard in federal rather than state court. Additionally, a Supreme Court ruling could further expand upon their recent landmark decision concerning regulatory agency power in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine, as the EPA’s regulatory power under FIFRA is a factor in the Circuit Courts’ decisions on FIFRA’s preemption of state law.