Amicus Letter Explains That Federal Law Preempts Roundup® Product Liability SuitSeptember 20, 2020
The Atlantic Legal Foundation has submitted an amicus curiae (“friend of the court”) letter urging the California Supreme Court to grant the petition for review filed on August 31, 2020 by Monsanto Company in Johnson v. Monsanto, a bellwether case in which a former school groundskeeper claims he developed a form of cancer as a result of using the company’s Roundup® weed control products. The letter, available here, was submitted by Atlantic Legal Foundation Chairman and President Hayward D. Fisk and prepared in collaboration with the organization’s Senior Vice President and General Counsel, Lawrence S. Ebner.
Atlantic Legal’s amicus letter focuses on one of several issues raised by Monsanto’s appeal: the immediate need for the California Supreme Court to address the question of whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)—the federal pesticide statute administered by the U.S. Environmental Protection Agency (EPA)—preempts the plaintiff’s failure-to-warn claims. The amicus letter argues “the fact that Johnson arises in California, which is the nation’s most economically important agricultural state, and challenges the adequacy of the federally regulated health and safety warnings on the labeling of Roundup® —the State’s and nation’s most widely used agricultural and residential herbicide,” makes the case particularly significant.
Equally important, EPA has exclusive authority under FIFRA to determine what warnings should be included on a pesticide product’s nationally uniform labeling. After years of extensive review of toxicology and other scientific data, EPA has determined that glyphosate, the active ingredient in Roundup®, does not pose a risk of cancer. As a result, EPA has notified Monsanto and other producers that adding a cancer warning to the labeling of their glyphosate products would be false and misleading, and thus violate FIFRA’s prohibition against distributing pesticide products that are misbranded.
Commenting on the Atlantic Legal Foundation’s amicus letter, Mr. Fisk stated “the California Supreme Court needs to review the Johnson case and hold that a pesticide manufacturer cannot be held liable for failing to include on product labeling a warning that EPA, an expert federal agency, not only has determined is scientifically unwarranted, but also would violate federal law.”
Mr. Ebner wrote an analysis of the California Court of Appeal’s flawed FIFRA preemption analysis in the Washington Legal Foundation’s Legal Pulse blog. It is that ruling, among others in the Johnson case, that is being appealed to the California Supreme Court.
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Read more Atlantic Legal Foundation amicus briefs authored by Larry Ebner
Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation.