Lots of eyes in agriculture will be on the Supreme Court Monday when the court is expected to announce whether to accept a petition submitted by Bayer that is backed by dozens of farm groups, conservative legal foundations and the U.S. Chamber of Commerce. The issue: Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts state tort-law claims like in thousands of cases brought by plaintiffs alleging exposure to Roundup caused their cancer.
More specifically, the question is whether states can put language on a pesticide label that differs from the federal label. Monsanto and its supporters argue that FIFRA expressly prohibits “any requirements for labeling or packaging in addition to or different from those required” by FIFRA.
On the other side, lawyers for California cancer victim Edwin Hardeman contend that FIFRA does not preempt the failure-to-warn claims in his case, pointing to a previous Supreme Court decision that held FIFRA “does not preempt state-law failure-to-warn claims that are substantively equivalent to, or narrower than, federal misbranding requirements,” according to Hardeman’s opposition brief in the Supreme Court.
The case received a lot of attention recently after U.S. Solicitor General Elizabeth Prelogar filed an amicus brief last month recommending the court not review it, reversing the position the Trump administration had taken in the U.S. Court of Appeals for the Ninth Circuit and raising the ire of farm groups and farm-state Republicans.
Mostly, they were upset that Prelogar had not discussed the issue with Ag Secretary Tom Vilsack, who told the Senate Ag Committee May 26 that he had not been consulted about the brief. The Environmental Protection Agency, which is responsible for implementing FIFRA, was consulted, a source with knowledge of the situation told Agri-Pulse.
For both sides, the stakes are high. Bayer, which anticipates paying close to $2.7 billion in Roundup settlements this year, still has about 30,000 claims to resolve out of roughly 138,000, according to the company.
The case involves Hardeman, who contracted cancer after long-term exposure to Roundup and won a district court verdict of about $25 million. The appeals court upheld the decision, finding that FIFRA did not preempt his claim that Monsanto had failed to adequately warn him of the health risks of the herbicide.
“If the Supreme Court decides to review the Hardeman case after input from the Solicitor General and finally rules in our favor, this will effectively end the glyphosate litigation,” Bayer CEO Werner Baumann said on an earnings call in March.
Werner Baumann, Bayer
However, “If the Supreme Court denies accepting the case for review or finally rules against us, we will activate the voluntary claims administration program in our five-point plan to help bring closure to the litigation,” he added.
The case “brings up one of the big questions for our society, which is the role of the federal government [versus] the role of the states,” Ed Messina, the director of EPA’s Office of Pesticide Programs, said Monday after speaking to state pesticide regulators.
“There is a role for the states to enact their own laws to protect their citizens as they see fit,” Messina said. “And there's a role for the federal government through commerce and making sure that there's an efficient stream of products in the marketplace.”
At the meeting of the State FIFRA Issues Research and Evaluation Group, Messina noted EPA had withdrawn objections to California’s proposal to add warning language to products containing glyphosate, the active ingredient in Roundup.
Under the Trump administration in 2019, the agency said it would not approve labels for products containing glyphosate that included a warning that the chemical probably causes cancer in humans, as concluded by the International Agency for Research on Cancer in 2015.
But in April, EPA said it could approve California's new language that referred both to IARC’s findings and EPA’s — that glyphosate is not likely to cause cancer.
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That proposed language says, “The International Agency for Research on Cancer classified glyphosate as probably carcinogenic to humans. US EPA has determined that glyphosate is not likely to be carcinogenic to humans; other authorities have made similar determinations. A wide variety of factors affect your potential risk, including the level and duration of exposure to the chemical. For more information, including ways to reduce your exposure, go to www.P65Warnings.ca.gov/glyphosate.”
Monsanto, bought by Bayer in 2018, contends — as do “friend of the court” briefs — that allowing states to write their own labels could lead to a mish-mash of state pesticide labels.
A Supreme Court decision from 2005 is central both to whether the Supreme Court takes up the petition and — if it does — how it will rule.
In Bates v. Dow Agrosciences, the court rejected an appeals court ruling that found FIFRA preempted state-law claims of negligence and failure to warn. The case involved peanut farmers who noted the herbicide Strongarm’s label “recommended its use in all peanut-growing areas when Dow knew or should have known that it would stunt the growth of peanuts in their soil, which had pH levels of at least 7.0,” the Supreme Court’s summary of the case says.
In Bates, the high court said “FIFRA has prohibited inaccurate representations and inadequate warnings since its enactment in 1947, while tort suits alleging failure-to-warn claims were common well before that date and continued beyond the 1972 amendments. We have been pointed to no evidence that such tort suits led to a ‘crazy-quilt’ of FIFRA standards or otherwise created any real hardship for manufacturers or for EPA.”
Monsanto, however, said in its petition that “Bates held that a state-law claim is expressly preempted by [FIFRA] §136v(b) if the law (1) imposes a ‘requirement for labeling or packaging’ that is (2) ‘in addition to or different from’ a requirement under FIFRA.”
Bates “compels the conclusion that any divergent state-law labeling requirement — including the one sought here, imposing a cancer warning EPA has rejected — is expressly preempted,” the petition says.
But Hardeman’s lawyers interpret Bates differently, saying in their opposition to the petition that “all appellate courts agree that, under [Bates], there is no express preemption of failure-to-warn claims involving Roundup.”
George Kimbrell, legal director at Center for Food Safety, an advocacy group, said "the Supreme Court in Bates confirmed that when it comes to pesticide regulation, Congress envisioned a 'cooperative federalism' model, with a robust role for state regulation. Essentially, Bates and other cases have confirmed that states cannot enact laws that might change the label EPA approves for a given pesticide, but beyond the law, states can enact other use restrictions."
As for worries about 50 states doing 50 different things, Kimbrell said, "Hardeman made no new law, just applied the long-standing status quo, which hasn’t created such a patchwork."
“The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against preemption,” Justice John Paul Stevens said in writing for the majority in the 7-2 Bates decision. “If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly.”
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