Justices Should Give Feds’ Roundup Amicus Little Weight

Law360 has published my sharply critical Expert Analysis of the amicus brief that the U.S. Solicitor General recently submitted to the Supreme Court in Monsanto Co. v. Hardeman, No. 21-241.

My analysis explains that –

“From the perspective of product liability defense attorneys, the brief from the solicitor general is a transparently partisan, short-sighted effort to do the plaintiffs bar’s bidding on an important federal preemption question that potentially affects thousands of personal injury claims involving use of Monsanto’s Roundup herbicide products.”

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) vests the U.S. Environmental Protection Agency (EPA) with sole and exclusive authority to regulate the content of a pesticide’s nationally uniform product labeling. The statute expressly preempts any State from imposing any requirements for pesticide labeling that are “in addition to or different from” the labeling requirements that EPA imposes under FIFRA.

During the past 35 years, EPA has reviewed extensive scientific data on glyphosate, the active ingredient in Roundup, and repeatedly concluded that there is “no evidence that glyphosate causes cancer in humans.” Although EPA has determined that a cancer warning on Roundup’s labeling would be scientifically unwarranted, and and false and misleading, thousands of personal injury suits have been filed against Monsanto alleging that Roundup’s labeling failed to warn that use of the product can cause cancer.

In the Hardeman case, a California federal district court awarded the plaintiff $25 million, and the Ninth Circuit affirmed. The principal legal issue is whether FIFRA preempts the plaintiff’s failure-to-warn claims. The Solicitor General’s amicus brief, which recommends against Supreme Court review, agrees that the plaintiff’s failure-to-warn claims are not preempted.

My analysis argues that the Supreme Court should give little weight to the Solicitor General’s brief because it reverses the government’s previous position on FIFRA preemption in the same case for what appear to be political reasons:

“Pointing to the change in administration, the solicitor general’s amicus brief reverses the unequivocal position on FIFRA preemption that U.S. Department of Justice attorneys, with the approval of the solicitor general, vigorously advocated on behalf of the United States before the U.S. Court of Appeals for the Ninth Circuit in the same bellwether product liability suit less than three years ago.”

My analysis further explains that—

“This is not the first time that the solicitor general, following a change of administration, has reversed its position on FIFRA preemption of pesticide-related failure-to-warn claims.

Now, the solicitor general, ‘[i]n light of the … change in Administration,’ i.e., at the behest of the Biden administration and its plaintiffs bar allies and supporters, once again has reversed course on FIFRA preemption.

The preemptive scope of an existing federal statute, such as FIFRA’s express preemption provision, Section 24(b), should not depend on which way the political winds are blowing.”

By way of background, I have written about FIFRA preemption, and served as party or amicus counsel in key FIFRA preemption appeals, for more than 30 years.

Readers of my analysis also will be interested in the article just written by Dan Fisher of Legal Newsline about the Solicitor General’s position in Hardeman.

Other articles that Larry Ebner has written about FIFRA preemption of product liability claims include:

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