Bayer is a step closer to getting a date before the Supreme Court where it can argue that the Federal Insecticide, Fungicide and Rodenticide Act preempts state laws that have allowed plaintiffs who claim Roundup caused their cancer to prevail in court against the agrochemical giant.
The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled recently that since Pennsylvania’s state law requiring companies to warn consumers about their products is not “equivalent” to FIFRA’s regulations, it is preempted.
A landscaper, David Schaffner Jr., and his wife, Theresa Sue Schaffner, sued Monsanto Co. in 2019 in the Philadelphia Court of Common Pleas, eventually reaching a settlement with Bayer on five claims other than their failure-to-warn cause of action. The case ended up in federal court after a judge overseeing some 4,000 cases in multi-district litigation denied Bayer preemption arguments.
The decision creates a split in federal appeals courts on the question of FIFRA preemption, making it more likely Bayer can persuade the Supreme Court to consider the matter. The court declined to do so in 2022, rejecting Bayer’s petitions to review 9th Circuit decisions against the company.
Bayer has been battling in courts for years over the issue, which has given rise to an $11 billion settlement settling thousands of cases and subsequent trials that resulted in eye-popping verdicts against the company, including a $2.25 billion verdict in Philadelphia, later reduced to $400 million.
More than 50,000 cases remain in state courts, as well as another 4,000 or so before U,S. District Judge Vincent Chhabria in the Northern District of California. The company says 114,000 of 172,000 cases have been “resolved or deemed to be ineligible.”
In a statement, Bayer said it was pleased and noted the circuit split with both the 9th and 11th circuits, which in February had rejected Bayer’s preemption claims in another case. The 11th Circuit then turned down Bayer’s request for a hearing before the full appeals court.
“This decision on federal preemption, a cross-cutting issue in this litigation, creates a circuit split among the federal appellate courts and necessitates a review by the U.S. Supreme Court to settle this important issue of law,” Bayer said.
However, Bayer must get past the potential hurdle of an en banc rehearing before the 3rd Circuit.
Ronald Miller“There is a misconception that the Supreme Court intervenes in every case where there is a split in the circuits,” said Ronald Miller, a plaintiffs’ attorney in Baltimore who runs a website devoted to litigation over Roundup. “So they have to get past a possible en banc review, get the Supreme Court interested, and have the Supreme Court rule in their favor on an issue they do not seem to support based on their past indifference. So, I don’t think they climb all three of those steps.”
He conceded, however, that while a successful petition “may still be unlikely, it is no longer pure fantasy.”
Patti Goldman, an attorney at Earthjustice who represented farmworker groups as friends of the court on the side of the Schaffners, also emphasized that while the 3rd Circuit’s decision would create a circuit split, it is not yet final.
Unlike the 9th and 11th circuits, which focused on the definition of misbranding in FIFRA, the 3rd Circuit looked instead to a “preapproval regulation” issued by EPA that “prohibits modifying the health warnings included on a pesticide’s preapproved label,” the court said.
The exceptions to that regulation “would not permit the addition of the cancer warning to the Roundup label,” the court held.
The court noted EPA has concluded that glyphosate is not carcinogenic to humans. The agency has been petitioned by the Center for Food Safety and other groups to cancel all uses of glyphosate-based products. Eleven states also are asking EPA to clarify its regulations so "state labeling requirements [that are] inconsistent with EPA’s findings and conclusions from its human health risk assessment on human health effects, such as a pesticide’s likelihood to cause cancer, birth defects or reproductive harm, constitute misbranding under FIFRA."
FIFRA itself says state-law pesticide requirement are preempted under FIFRA if they are “in addition to or different from” FIFRA’s own requirements. In the Supreme Court’s only decision on the issue, a 2005 opinion in Bates v. Dow Agrosciences, the 3rd Circuit said that language “imposes a ‘parallel requirements’ test” that says “a state-law labeling requirement is not preempted if it is ‘equivalent to a requirement under FIFRA’ but is preempted if it ‘diverges from those set out in FIFRA and its implementing regulations’.”
The Schaffners contended that the lack of a label warning of Roundup’s connection to cancer violated Pennsylvania law requiring the company to warn it of the weedkiller's health hazards.
But the 3rd Circuit said FIFRA “mandates nationwide uniformity in pesticide labeling by prohibiting states from imposing labeling requirements that are in addition to or different from the requirements imposed under FIFRA itself.”
Patti GoldmanFIFRA’s implementing regulations “require the health warnings on a pesticide’s label to conform to the proposed label approved by the EPA during the registration process,” the court said, adding that “EPA approved proposed labels omitting a cancer warning following an extensive review of scientific evidence concerning Roundup’s possible carcinogenicity.”
“While the cancer warning was allegedly required by the [state’s] duty to warn, it was omitted from Roundup’s preapproved label and could not have been added to the Roundup label without violating the preapproval regulation,” the court said.
The Schaffners had argued that the court should look to apply the prohibition against misbranding in FIFRA. But the three judges, who ruled unanimously, said the “parallel requirements” test in Bates should be applied “using more specific EPA regulations requiring pesticide labels to bear particular contents … rather than using the broad statutory definition of misbranding.”
Goldman said the 9th and 11th circuits interpreted Bates as allowing states “to create additional remedies for selling products without adequate warnings to prevent cause unreasonable adverse effects, the FIFRA standard, which is what state misbranding law does.”
The 3rd Circuit, on the other hand, “adopted a procedural vs. substantive interpretation of what Bates allows. It viewed the EPA-approved label to be static and adequate to guard against unreasonable adverse effects, even if that is not the case in fact.”
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