The U.S. Court of Appeals for the Eleventh Circuit has granted rehearing en banc in Carson v. Monsanto Co., No. 21-10994, one of thousands of state-law personal injury suits alleging that Monsanto, the manufacturer of Roundup herbicide, failed to provide a label warning that glyphosate, the active ingredient in Roundup, can cause cancer. The U.S. Environmental Protection Agency (EPA), which administers the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), has repeatedly determined, based on review of extensive scientific data, that glyphosate does not cause cancer in humans, and thus, that including a cancer warning on Roundup labeling would be false and misleading and a violation of FIFRA’s misbranding provisions.
The Atlantic Legal Foundation, joined by the Washington Legal Foundation, has filed an en banc amicus brief authored by Larry Ebner urging the court of appeals to hold that FIFRA expressly preempts Plaintiff-Appellant Carson’s failure-to-warn claim. The brief argues that in so holding, the court should narrowly construe the so-called “parallel requirements” exception to FIFRA preemption.
FIFRA provides that “[a] State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA].” 7 U.S.C. § 136v(b). In Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005), the Supreme Court held that this express preemption provision applies to state-law failure-to-warn claims against pesticide manufacturers. The Court indicated, however, that to be preempted, a failure-to-warn claim must be based on a state-tort duty that is “in addition to or different from”—not “parallel” or “equivalent” to, or “genuinely consistent” with—FIFRA’s labeling requirements, as implemented by EPA.
ALF/WLF Amicus Brief:
The ALF/WLF amicus brief argues that the so-called “parallel requirements” exception to FIFRA preemption is narrow, and does not apply to Carson’s failure-to-warn claim. “A state-law requirement for inclusion of a cancer warning on a federally regulated pesticide product’s label cannot be parallel or equivalent to, or in any way consistent with, an EPA requirement prohibiting such a warning on the product’s label.”
In view of the expansive manner in which the plaintiffs’ bar, and some courts, have interpreted the parallel requirements exception, the ALF/WLF brief urges the court of appeals to clarify the exception’s narrow scope and identify the limited circumstances—not present in the case of Roundup—under which it applies (e.g., if a manufacturer fails to include on a label a specific warning that EPA, in accordance with FIFRA, has determined is necessary to protect health or the environment).
Read More: Can FIFRA Preemption Be Revived?