ALF Urges Supreme Court To Clarify Federal Preemption Of Pesticide Failure-To-Warn Suits

By Lawrence S. EbnerSeptember 1, 2021

I today filed on behalf of the Atlantic Legal Foundation a petition-stage amicus brief supporting Petitioner Monsanto Company in Monsanto Co. v. Hardeman, No. 21-241.

EPA Has Exclusive Authority To Regulate the Content of Pesticide Labeling

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) vests the U.S. Environmental Protection Agency (EPA) with exclusive authority to regulate the content of pesticide product labeling. FIFRA accomplishes this by expressly preempting a State from imposing “any requirements for labeling” that are “in addition to or different from” the labeling requirements that EPA imposes under FIFRA. In Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005), the Supreme Court held that this provision – 7 U.S.C. § 136v(b) – expressly preempts state common law failure-to-warn claims about a pesticide’s alleged risks unless such a claim is premised on a state-law requirement for labeling that is “parallel” or “equivalent” to the requirements for labeling imposed by EPA under FIFRA.

Based on review of extensive scientific data, EPA has determined that the active ingredient in Roundup, a widely used residential and agricultural herbicide, does not cause cancer in humans, and thus, that a cancer warning on Roundup’s nationally uniform product labeling is unwarranted. Nonetheless, thousands of personal injury lawsuits have been filed against Roundup’s manufacturer, Monsanto Company, alleging that Roundup causes cancer and that the product’s label failed to warn of that supposed risk.

The principal question presented is whether FIFRA preempts a state-law tort claim for failing to provide a label warning that EPA has determined is scientifically unwarranted. The petition also presents a question regarding the lax manner in which the Ninth Circuit enforces a district court’s “gatekeeper” role concerning admission of expert testimony under Federal Rule of Evidence 702.

ALF’s amicus brief urges the Court to grant review to clarify that under § 136v(b) of FIFRA, a failure-to-warn claim cannot be based on a state-law requirement for labeling that is “parallel” or “equivalent” to, or consistent with, EPA’s requirements for labeling if it mandates a label warning that EPA has determined is scientifically unwarranted.  The brief explains that any such interpretation would thwart congressional intent by rendering the § 136v(b) preemption provision virtually meaningless.  Instead, as the Court explained in Bates, the purpose of the parallel requirements exception to preemption is to enable a State to create a private cause of action if a pesticide product’s labeling fails to comply with federal labeling requirements, which EPA imposes on a product-by-product basis. For example, if EPA requires a product’s label to include a cancer warning, and the product’s manufacturer fails to do so, a state-law failure-to-warn claim based on that federal requirement would not be preempted.  But, as in the case of Roundup, where EPA determines that a cancer warning is unwarranted, a failure-to-warn claim based on a state-law requirement to provide such a warning would by expressly preempted by § 136v(b).

ALF’s amicus brief also discusses the relationship between Federal Rule of Evidence 702, as amended in light of the Supreme Court’s Daubert trilogy of cases, and providing a defendant with due process and a fair trial. The brief explains that if a district court fails to fulfill its “gatekeeper” duty to prevent a jury from hearing unreliable scientific testimony,  the resultant confusion and prejudice can deprive the defendant of a fair trial and lead to an unwarranted award of damages.


Read more Atlantic Legal Foundation amicus briefs authored by Larry Ebner

Atlantic Legal Foundation's nationally renowned amicus curiae program is conducted by Lawrence Ebner


Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation