A week before the trial of another lawsuit challenging the safety of Monsanto Company’s (“Monsanto”) Roundup products is scheduled to start, the judge presiding over the case issued a pre-trial decision dismissing some of the claims filed by the plaintiff. According to the judge, some of the state law claims the plaintiff had raised were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and therefore could not be pursued. The dismissed claims focused on whether Monsanto had “failed to warn” the plaintiff of the risks of Roundup by not placing a warning label on the product. However, the judge found that those claims were preempted by FIFRA which does not allow states to impose labeling requirements in excess of those required by the federal statute. This is in contrast to a ruling from the Ninth Circuit Court of Appeals issued in May, 2021 where the court concluded that the failure to warn claims brought by the plaintiff in that case were not preempted by FIFRA.
This case, Stephens v. Monsanto Co., CIVSB2104801 (Cal. Super. Ct., 2021), is one of the numerous lawsuits that have been filed against Monsanto (now owned by Bayer, but still the named defendant in the case) over injuries allegedly caused by exposure to glyphosate, the active ingredient in Roundup herbicides. To date, only three of the hundreds of lawsuits have gone to trial. Juries have found in favor of the plaintiffs in each of those three trials. Set to begin on Monday, August 2, 2021, Stephens v. Monsanto Co. will be the fourth of these cases to go to trial.
Like other plaintiffs in Roundup-related cases, the plaintiff in Stephens v. Monsanto Co. has been diagnosed with non-Hodgkin lymphoma (“NHL”) which she alleges is the result of her exposure to Roundup. In her complaint, the plaintiff has raised a variety of claims based in California state law, including design defect, negligence, fraud, breach of express and implied warranties, and failure to warn. Most of these claims have been brought in other Roundup cases, including the three where juries found in favor of the plaintiff.
Prior to the start of the jury trial in Stephens v. Monsanto Co., the defendant asked the court to dismiss the plaintiff’s failure to warn claims, arguing that the claims were preempted by FIFRA. Preemption occurs when a “higher” level of government reduces the authority of a “lower” level of government on a particular issue. In the United States, preemption may occur when a federal law and a state law conflict. Because the federal law is the “higher” level of government, if it conflicts with the “lower” state law, the federal law will generally win out. Preemption can be either express or implied. Express preemption exists when a law contains specific language explicitly preempting legislation from a lower level of government. Implied preemption exists where a law from a lower level of government presents an obstacle to the accomplishment and execution of the goals of a higher level of government. Implied preemption can be more difficult to identify.
FIFRA is the federal statute governing pesticide use and regulation in the United States. Among its many provisions are requirements concerning the labeling of federally registered pesticides. Under FIFRA, pesticide labels are approved and registered by the Environmental Protection Agency (“EPA”). It is a violation of FIFRA to distribute any pesticide which has been “misbranded.” 7 U.S.C. § 136j (a)(1)(E). A pesticide is misbranded under FIFRA if its labeling contains any information which is “false or misleading.” 7 U.S.C. § 136(q)(1)(A). While EPA bears the main responsibility for registering pesticides and approving labels, FIFRA grants states the ability to regulate the sale or use of any registered pesticide so long as the regulation does not permit any sale or use prohibited by FIFRA. 7 U.S.C. § 136v(a). Additionally, states may not impose any labeling or packaging requirements that are “in addition to or different from” those required by FIFRA. 7 U.S.C. § 136v(b).
When a plaintiff brings a state law failure to warn claim, they are seeking to hold a manufacturer liable for injuries that occurred as a result of the manufacturer’s failure to provide adequate warnings for a product. In essence, the plaintiff is arguing that had the manufacturer provided adequate warnings, then the injury to the plaintiff would not have occurred. In Stephens v. Monsanto Co., the plaintiff argues that had Monsanto provided adequate warnings that the glyphosate in Roundup was carcinogenic, then she would have been able to utilize the product safely and with adequate protection to avoid or prevent injury. In response, Monsanto argued that the failure to warn claims should be dismissed because the label for Roundup that has been approved by EPA does not contain a carcinogen warning. According to Monsanto, any finding that a carcinogen warning is required under state law would be preempted by the FIFRA provision preventing states from imposing labeling requirements that are “in addition to or different from” those on the federally approved label.
Decision from the Court
After reviewing the arguments from both the plaintiff and the defendant, a judge in the Superior Court of San Bernardino County concluded that the failure to warn claims should be dismissed because they are preempted by FIFRA.
The court began by reviewing the relevant provisions of FIFRA, highlighting the “in addition to or different from” language limiting the ability states have to alter pesticide labels. From there, the court noted that EPA has repeatedly approved Monanto’s Roundup label without requiring a carcinogen warning. EPA has classified glyphosate as non-carcinogenic for humans since 1991, a finding that it affirmed again in 2016 following the release of a report from the International Agency for Research on Cancer (“IARC”) in 2015 that identified glyphosate as a likely carcinogen. The report EPA issued in 2016 reaffirmed the agency’s determinations that glyphosate was not likely to be carcinogenic to humans.
When considering the issue of preemption, the court found that ultimately EPA holds the belief that glyphosate is not likely to be a human carcinogen and therefore does not require a carcinogen warning on products containing glyphosate. According to the court, while the plaintiff may believe that EPA’s decision it flawed, that does not alter the fact that FIFRA makes it clear that a state law cannot add to or impose different standards for labels than those required by FIFRA. The count concluded that California cannot, by statute or through a state law tort claim, mandate that Monsanto include any label or packaging warning that use of glyphosate may cause cancer because the EPA under its FIFRA authority has concluded that glyphosate is not likely to be carcinogenic. Therefore, the court found that the plaintiff’s failure to warn claims were preempted by FIFRA and dismissed them. Those claims are now no longer part of the lawsuit and will not be heard by the jury when this case goes to trial.
This is not the first time that Monsanto has asked for a court to dismiss failure to warn claims in a Roundup lawsuit. In May, 2021, the Ninth Circuit Court of Appeals issued a ruling upholding a $25 million award to a plaintiff to claimed to have contracted NHL after being exposed to Roundup. One of the arguments Monsanto made when it appealed the decision from the jury was that the failure to warn claims the plaintiff had raised at trial were preempted by FIFRA. The Ninth Circuit disagreed with Monsanto, ruling that the failure to warn claims were not preempted after applying the test laid out by the United States Supreme Court in Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) for courts to use when determining whether a state law is preempted by FIFRA. Under that test, a state law will only be preempted if it is (1) a requirement for pesticide labeling or packaging, and (2) is also in addition to or different from FIFRA requirements. The Ninth Circuit applied the Bates test and concluded that the failure to warn claims were not preempted because both the FIFRA and California common law require any “necessary” warnings be provided to protect human health. To read more about that decision, click here.
Although the trial in Stephens v. Monsanto is set to start on August 2, the plaintiff could choose to appeal the court’s decision to dismiss the failure to warn claims. Under the California Rules of Court, a party has up to 60 days after it receives notice that the court’s judgment has been entered in which it can appeal the ruling. At this moment, the plaintiff has not indicated whether she will choose to appeal the ruling. However, if she does, she could refer to the Ninth Circuit’s conclusion that the failure to warn claims were not preempted.
Even if the plaintiff in Stephens v. Monsanto chooses not to appeal the ruling, it is likely that the issue of preemption will come up again as litigation over Roundup continues. With competing rulings from the Ninth Circuit Court of Appeals and from a state court in California, it is unclear how the issue will ultimately be resolved.
To read the ruling in Stephens v. Monsanto, click here.
To read the complaint in Stephens v. Monsanto, click here.
To read the text of FIFRA, click here.
For additional articles on Roundup litigation, click here.
For additional National Agricultural Law Center resources on FIFRA preemption, click here.
For additional National Agricultural Law Center resources on pesticides, click here.