The last several months have seen numerous developments in the on-going litigation filed by plaintiffs who claim that glyphosate-based pesticide products caused them to develop cancer. In these lawsuits, the plaintiffs argue that Monsanto Co. (purchased by Bayer in 2018) failed to warn consumers that use of Roundup, a glyphosate-based pesticide product, would result in significant health risks. The first lawsuits making such claims were filed in 2016. Since that time, tens of thousands of such cases have been filed. Most recently, the Eleventh Circuit Court of Appeals considered whether a prominent claim raised by plaintiffs in pesticide injury lawsuits should be preempted by federal law, while the Ninth Circuit Court of Appeals upheld a $23 million settlement agreement resolving some of the on-going cases. Each action is relevant to the over-all scope of litigation as other courts consider the issue of preemption, and other plaintiffs seek settlement agreements with Bayer.

At the Eleventh Circuit

Perhaps the most significant of the recent developments in the on-going glyphosate injury litigation is the Eleventh Circuit Court of Appeal’s denial of en banc review of a three-judge panel’s decision in Carson v. Monsanto, No. 21-10994 (11th Cir. 2024). The denial represents the latest move in the long-running lawsuit which has spent the past few years focused on whether one of the state law tort claims raised by the plaintiff should be preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Specifically, the lawsuit has focused on whether the plaintiff’s claim that the defendant failed to warn him that using glyphosate could cause him to develop non-Hodgkin’s lymphoma was preempted by the provision of FIFRA which prohibits states from adding any language that is “different from or in addition to” the language on a federally approved label. The question of whether failure-to-warn claims should be preempted by FIFRA has been central not only to pesticide injury litigation involving glyphosate, but to all pesticide injury litigation. As explained in this previous NALC article, almost every plaintiff who has filed a pesticide injury lawsuit raises a failure-to-warn claim to argue that the pesticide manufacturer is liable for failing to warn consumers of the health risks associated with their products.

Those in favor of preemption argue that the failure-to-warn claims should not be heard in court because FIFRA would prohibit a state from requiring a pesticide manufacturer to include a cancer warning on its pesticide product if the warning is “different from or in addition to” the federally registered label. In the case of glyphosate, the federal label does not include a cancer warning and the Environmental Protection Agency (“EPA”) has never determined that glyphosate is a likely carcinogen. On the other hand, those who oppose preemption cite a different FIFRA provision that outlaws the sale of any pesticide that has been “misbranded.” Under FIFRA, a pesticide is considered “misbranded” if “its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular[.]” Pesticide injury plaintiffs who claim that their failure-to-warn claims are not preempted argue that the misbranding provision of FIFRA runs parallel to a pesticide manufacturers duty to warn consumers of the risks of using their products.

In 2021, the Ninth Circuit Court of Appeals issued a ruling in Hardeman v. Monsanto, No. 19-16636 (9th Cir. 2021) where the court concluded that the plaintiff’s failure-to-warn claims were not preempted by FIFRA because the claims ran parallel to FIFRA’s prohibition on misbranding. After that ruling, the defendants turned to the Eleventh Circuit and began to pursue the preemption argument in Carson v. Monsanto. There, the defendants once again argued that the plaintiff’s failure-to-warn claims were preempted by FIFRA. If the Eleventh Circuit came to a different conclusion than the Ninth Circuit, it would have resulted in a circuit-split which may have made it more likely for the United States Supreme Court to hear the issue.

On February 5, 2024, a three-judge panel of the Eleventh Circuit issued its decision on the question of preemption in Carson v. Monsanto. Ultimately, the court concluded that the failure-to-warn claims were not preempted. Like the Ninth Circuit, the Eleventh Circuit determined that the failure-to-warn claims ran parallel to FIFRA’s prohibition on misbranding. In other words, the prohibition on misbranding is broad enough to include the plaintiff’s failure-to-warn claims. If the defendant had, in fact, failed to warn consumers that glyphosate was carcinogenic, then any pesticide products containing glyphosate would have been misbranded. Based on that reasoning, the Eleventh Circuit found in favor of the plaintiff and allowed the failure-to-warn claims to stand.

The defendant moved to have the entire Eleventh Circuit review the panel’s ruling. While most litigation argued in a circuit court is heard by a three-judge panel, a party who is dissatisfied with the panel’s opinion can seek to have the issue heard en banc where all the judges sitting on the circuit court come together to hear the case. However, circuit courts have complete discretion to hear a case en banc or not. In Carson v. Monsanto, the Eleventh Circuit declined to provide an en banc rehearing of the court’s decision. By refusing to rehear the case, the three-judge panel’s ruling will stand.

There are currently thousands of pesticide injury cases active in United States courts, almost all of which have raised a failure-to-warn claim. With two different circuit courts finding that the claims are not preempted by FIFRA, those plaintiffs can continue to argue that pesticide manufacturers have failed to warn them of the health risks associated with using their products, even when the federal label does not require such a warning. As these cases continue to proceed, this issue to likely to remain a focus of litigation.

At the Ninth Circuit

While there are still numerous active pesticide injury cases involving glyphosate, many of the cases filed since 2016 have also been subject to settlements. In 2022, a nationwide class action lawsuit consisting of plaintiffs who claimed that Monsanto Co. had failed to disclose to consumers that Roundup contained a carcinogen reached a $23 million settlement agreement with Bayer. Under the agreement, the plaintiffs could receive up to 20% of the price they paid for Roundup products.

On May 29, 2024, the Ninth Circuit upheld this settlement agreement after two plaintiffs who were part of the class action objected to the deal, claiming that it only awarded them a fraction of the monetary damages they could have received from a successful litigation in an on-going class action lawsuit in their home state of Missouri. The plaintiffs also argued that the settlement had been reached through collusion, claiming that the lower district court had improperly relied on a mediator when it approved the settlement in 2022.

While considering the plaintiff’s claims that the nationwide settlement prevented them from receiving a higher amount of damages in a Missouri-based lawsuit, the Ninth Circuit concluded that the plaintiffs were unlikely to have a better outcome because the Missouri class action would be “vulnerable to similar weaknesses” as the nationwide class action and would not put the plaintiffs in a better bargaining position. The court noted that the Missouri class action was narrower in scope than the nationwide class action because the Missouri action concerned only those consumers who had purchased Roundup for personal, family, or household use, while the nationwide class action aimed to settle claims for all purchasers of Roundup. Additionally, the court noted that the plaintiffs had failed to present any evidence showing that the district court had overlooked the strength of the Missouri action when approving the nationwide settlement.

Finally, the Ninth Circuit determined that no evidence of collusion existed, finding that the district court did not rely on a mediator when approving the settlement. Specifically, the Ninth Circuit noted that there was no evidence that the lower court had taken the mediator’s word that the settlement agreement was fair at face value. Instead, the Ninth Circuit concluded that the lower court had done its due diligence to ensure that the settlement agreement was fair to all parties. Following the court’s decision, the settlement agreement will stand.


As pesticide injury litigation continues to be filed and fought in the United States court system, decisions like the ones issued by the Eleventh and Ninth Circuits in recent months will continue to have impacts that are felt beyond the immediate courtroom. Particularly when it comes to the question of whether failure-to-warn claims are preempted by FIFRA, each new court decision considering the issue adds another wrinkle to a complex and far-reaching topic.


To read the Eleventh Circuit’s decision in Carson v. Monsanto, click here.

To read the Ninth Circuit’s decision upholding the nationwide settlement agreement, click here.

To learn more about pesticide injury lawsuits, click here to view NALC’s series “Plaintiffs & Pesticides.”

For more pesticide resources from NALC, click here.