On August 15, 2024, the United States Court of Appeals for the Third Circuit held in Schaffner v. Monsanto that the plaintiff's Pennsylvania state-law claims, which asserted that Monsanto failed to warn about alleged cancer risks presented by glyphosate (the active ingredient in the weed killer Roundup), were expressly preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). In so holding, the Third Circuit disagreed with earlier decisions issued by the Ninth Circuit (Hardeman v. Monsanto) and the Eleventh Circuit (Carson v. Monsanto), both of which held that FIFRA did not preempt state failure-to-warn claims regarding glyphosate product labeling. This circuit split makes it more likely that the Supreme Court of the United States will ultimately take up the issue―and its eventual ruling will have significant implications on the scope of FIFRA preemption nationwide.
Background
The case in the Third Circuit is one of many in the Roundup litigation saga that Monsanto has been fighting over the years. This litigation consists of claims that glyphosate, the active ingredient in Monsanto's popular weed killer Roundup, causes non-Hodgkin lymphoma. To counter these claims, Monsanto has repeatedly argued that FIFRA preempts state-law claims that it failed to warn about alleged cancer risks.
FIFRA governs "the use, as well as the sale and labeling, of pesticides" and gives the Environmental Protection Agency (EPA) the authority to regulate the pesticide industry. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991-92 (1984). Pursuant to this authority, the EPA oversees the registration of pesticides and the approval of proposed labels on pesticides. Notably, FIFRA expressly prohibits states from imposing labeling requirements "in addition to or different from those required" by FIFRA. 7 U.S.C. § 136v(b). Whether Pennsylvania law imposed requirements "in addition to or different from" the labeling requirements imposed by FIFRA was the crux of the issue before the Third Circuit in Schaffner.
The Third Circuit Decision
In Schaffner, a panel of the Third Circuit Court of Appeals unanimously held that FIFRA expressly preempted any Pennsylvania state-law requirement to include a cancer warning on the Roundup label. The court reasoned that "[b]ecause regulations promulgated to implement FIFRA require the health warnings on a pesticide's label to conform to the proposed label approved by the EPA during the registration process," and "because during Roundup's registration process the EPA approved proposed labels omitting a cancer warning" (emphasis added), the alleged state-law duty to include a cancer warning on Roundup's label differed from FIFRA's requirements and was thus expressly preempted. Opinion at 6.
In reaching this conclusion, the court observed that "FIFRA's labeling requirements are articulated at two distinct levels of generality." Opinion at 45. On the one hand, FIFRA contains a "broad statutory definition of misbranding," id., which prohibits the distribution and sale of pesticides that "do[] not contain a warning or caution statement which may be necessary ... to protect health and the environment." 7 U.S.C. § 136(q)(1)(G). Based on this language, the plaintiffs in this case argued—and the Ninth and Eleventh Circuits ruled in prior cases—that FIFRA did not preempt state failure-to-warn claims because the state-law duty to warn was equivalent to FIFRA's statutory definition of misbranding. See Opinion at 45. On the other hand, FIFRA also contains more specific regulatory requirements that "give[] content to the broad misbranding standard by specifically requiring a pesticide's label to bear the particular precautionary statements on its Preapproved Label." Opinion at 53. The Third Circuit opted for this more specific framing of FIFRA—"because Roundup's Preapproved Label omitted" cancer warnings, requiring Monsanto to implement such warnings under state law would impose requirements that differed from federal regulatory requirements. Id.; see also id. at 26-27 (agreeing with Monsanto's argument that "[t]he EPA established that federal law requires Roundup's label to omit the Cancer Warning ... since its Preapproved Label omits the Cancer Warning," and "if FIFRA requires the Cancer Warning to be omitted, a Roundup label that complies with FIFRA must violate the Pa. Duty to Warn"). Accordingly, preemption was appropriate.
Implications
In its opinion, the Third Circuit noted, "The complex subject of preemption under FIFRA has not been comprehensively analyzed in prior caselaw, and the Supreme Court has yet to address FIFRA preemption in the specific circumstances presented by this case." Id. at 64. Now that the Third Circuit has generated a circuit split, it is more likely that the Supreme Court will take up these issues in a future case. A ruling from the Supreme Court would clarify which analytical approach courts should use to frame the FIFRA preemption analysis, which would have significant implications on the scope of FIFRA preemption nationwide. In addition, because EPA regulations implementing FIFRA will be at issue, the Supreme Court may also have an opportunity to further opine on the contours of its landmark decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (2024), which overruled Chevron deference and requires courts to instead "exercise their independent judgment in deciding whether an agency has acted within its statutory authority."
For More Information
If you have any questions about this Alert, please contact Sharon L. Caffrey, Sean K. Burke, William R. Heaston, any of the attorneys in our Products Liability and Toxic Torts Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.