More than two decades ago, I stood before the Justices of the California Supreme Court and succeeded in persuading them that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempts pesticide-related failure to warn claims. See Etcheverry v. Tri-Ag Service, Inc., 22 Cal.4th 316 (Cal. 2000). Five years later, in Bates v. Dow AgroSciences, LLC, 544 U.S. 431 (2005), the U.S. Supreme Court, based on a somewhat different reasoning, reached the same conclusion. Both Etcheverry and Bates were agricultural crop damage cases. But failure-to-warn suits continue to be filed against pesticide producers, particularly in the personal injury context. Cancer-related failure-to-warn suits involving Roundup, a widely used residential and agricultural herbicide, are the most prominent current example.
I recently filed amicus briefs on behalf of the Atlantic Legal Foundation in both the U.S. Supreme Court and the California Supreme Court explaining that
“it is difficult to imagine a more clear-cut case than [Roundup] for federal preemption of state-law, pesticide-related, failure-to-warn claims.”
The case for preemption of Roundup failure-to-warn claims is so compelling because the U.S. EPA, which administers FIFRA, has determined, based on extensive review of scientific data, that glyphosate (the active ingredient in Roundup) does not pose a risk of cancer in humans, and as a result, that a cancer warning on Roundup labeling would be scientifically unwarranted. In fact, EPA has notified glyphosate producers that such a warning would be false and misleading and a violation of federal law. See ALF amicus brief in Monsanto Co. v. Hardeman and amicus letter in Pilliod v. Monsanto Co.
In my view, Congress intended to preempt juries from second-guessing EPA’s scientific determinations concerning what specific health and safety warnings should—and should not—be provided on a particular pesticide product’s label. Let’s hope that the U.S. Supreme Court and/or the California Supreme Court revisits this important and recurring federal preemption issue.
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Capital Appellate Advocacy Founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation.