UPDATE: On February 14, 2020 the jury in Bader Farms, Inc. v. Monsanto Co., No. 1:16-cv-299 (E.D. Mo. 2020) ruled in favor of the plaintiff, Bader Farms, and awarded $15 million dollars in damages. The following day, February 15, the jury awarded an additional $250 million in punitive damages. To read more click here or here.

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The plaintiff farmers in both Bader Farms, Inc. v. Monsanto Co., No. 1:16-cv-299 (E.D. Mo. 2019) and In re: Dicamba Herbicides Litigation, No. 1:18-md-02820 (E.D. Mo. 2019) raised state law failure to warn claims against Monsanto Company (“Monsanto”) and BASF Corporation (“BASF”). In both cases, only Monsanto moved to have the claims dismissed and each time the court refused. As a result, these specific claims are proceeding to the next step in each litigation.

Failure to warn claims are brought against product manufacturers for failing to provide adequate warnings alerting consumers of the potential dangers of using their products. The plaintiffs in both cases argued that they were injured by the defendants’ failure to provide warnings on their dicamba-based products. According to the plaintiffs in both In re: Dicamba and Bader Farms, the labels attached to the dicamba-based pesticides manufactured by both Monsanto and BASF were inadequate to inform consumers about the risks the pesticides presented to non-dicamba-resistant soybeans.

Although the state law failure to warn claims are similar to the federal Lanham Act claims raised by the In re: Dicamba plaintiffs because both claims allege that Monsanto and BASF provided misleading or inadequate information, there is an important difference between the two. The Lanham Act claims allege that the defendants used misleading statements to market their products, while the state law failure to warn claims allege that the products themselves do not come with warnings or instructions that would alert consumers to the risks associated with the products.

IN RE: DICAMBA

The plaintiffs in In re: Dicamba all alleged failure to warn claims under the laws of their respective states in the Crop Damage Class Action Master Complaint (“Crop Damage Master Complaint”). The claims were brought against both Monsanto and BASF, however only Monsanto moved to have the claims dismissed. Monsanto argued that the claims should have been dismissed because they were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the federal statute which regulates the use, sale, and labeling of pesticides.

FIFRA is implemented by the Environmental Protection Agency (“EPA”). The statute requires that before a pesticide becomes legally available for sale and use, EPA must register the pesticide. To register a pesticide with EPA, a manufacturer must submit a proposed label to the agency that provides instructions for how to use the pesticide. EPA will only approve a pesticide once it ensures that when it is used according to the label directions, it does not harm people or the environment.

Although FIFRA does not require EPA to confirm that a pesticide will not cause crop damage before approving a label, it does have a prohibition on “misbranding,” which occurs when a label contains “false or misleading” statements, or if the label omits necessary warnings. It is unlawful under FIFRA to sell a misbranded pesticide, even if EPA-approves it. While EPA has the authority to cancel a pesticide registration for misbranding, FIFRA does not provide a right of action to private individuals interested in suing for damages caused by misbranding. Instead, individuals who have suffered damage due to misbranded pesticides may file lawsuits under applicable state law- so long as the state law is not preempted by FIFRA. According to FIFRA’s preemption provision, state law will be preempted by the statute if it imposes a labeling or packaging requirement that is either in addition to or different from the requirements provided by FIFRA.

In In re: Dicamba, the plaintiffs claimed that the defendants had failed to provide adequate warnings and instructions on the labels for their dicamba-based pesticides. Additionally, the plaintiffs argued that the labels the defendants did put on their products were “false, misleading and failed to contain warnings or instructions adequate to protect or prevent harm to the environment.”  Monsanto argued that the failure to warn claims were preempted by FIFRA and should therefore be dismissed because they sought to impose label requirements that were different from or in addition to the requirements imposed by FIFRA.

The plaintiffs made two arguments as to why the failure to warn claims were not preempted by FIFRA. First, the plaintiffs argued that their failure to warn claims went to more than just the labels on the defendants’ products. The plaintiffs alleged that Monsanto failed to warn of the risks of its products in a variety of ways, including face-to-face discussions, websites, and social media. Because those failure to warn claims do not target the defendants’ product labels, the plaintiffs argue that FIFRA does not preempt them. Second, the plaintiffs argued that the failure to warn claims that did involve the defendants’ product labels were likewise not preempted by FIFRA because those claims do not seek to impose requirements that are in addition to or different from FIFRA. Instead, the plaintiffs maintained that the state laws were consistent with FIFRA’s prohibition on misbranding, which occurs if a label does not contain necessary warnings.

Ultimately, the court felt that the information and arguments from all the parties was insufficient to allow the court to make a conclusive ruling. It agreed with the plaintiffs that the failure to warn claims that did not concern the product labels would not be preempted by FIFRA, but felt that it could not make a specific ruling about the claims that concerned the labels without more information. However, the court did not dismiss the failure to warn claims. The court allowed the claims to advance to the trial stage, but warned that they could not exceed the parameters of FIFRA.

BADER FARMS

Like in In re: Dicamba, the plaintiffs in Bader Farms brought their failure to warn claims against both BASF and Monsanto, but only Monsanto moved to dismiss. While the parties all agreed with the court’s conclusion in In re: Dicamba that the plaintiffs could not bring failure to warn claims that exceeded the parameters of FIFRA, Monsanto argued that the court should review whether the failure to warn claims that concerned non-label-related statements were preempted by FIFRA, and that all the failure to warn claims must fail regardless of anything else because the plaintiffs alleged that no warning would have fully protected them. The court declined to reconsider its ruling on the non-label-related failure to warn claims, but did address Monsanto’s second argument.

Under Missouri law, the law of the state where the court is located and where Monsanto is headquartered, a failure to warn claim requires a plaintiff to allege that their harm was proximately caused by the defendant’s alleged failure to provide an adequate warning. Monsanto argues that because the plaintiffs in Bader Farms alleged that no warning would have prevented the damage to their crops, then their failure to warn claims should be dismissed. In response, the plaintiffs argued that although no warning would have prevented Monsanto’s dicamba-based pesticides from moving off-target, proper warnings would have affected the decisions of farmers to purchase and use the products. The court concluded that the plaintiffs adequately plead their failure to warn claims. Monsanto’s motion to dismiss was denied and the failure to warn claims have advanced to the next stage of litigation.

GOING FORWARD

Ultimately, the outcome of the trials for In re: Dicamba and Bader Farms could impact the information required to be included with dicamba-based pesticides. If each case concludes with a finding that either Monsanto or BASF failed to provide consumers with enough information to adequately inform them of the risks associated with dicamba-based pesticides, then that could mean that additional warnings or instructions will be required for such pesticides going forward.

 

To read the Crop Damage Master Complaint, click here.

To read the complaint in Bader Farms, click here.

To read the court’s opinion on motions to dismiss in In re: Dicamba, click here.

To read the court’s opinion on motions to dismiss in Bader Farms, click here.

To read the text of FIFRA, click here.

To read the previous article in this series involving Lanham Act claims, click here.

To read the first article in this series providing an overview of lawsuits concerning dicamba, click here.