Does federal law preempt contrary state law or state-based claims when a federal agency has approved a warning label on a product? That’s one of the questions the U.S. Supreme Court will decide this week whether to hear during its next Term. It sounds simple to answer—which is yes—but the case represents a years-old battle over warning labels.
The product at issue is the popular weedkiller Roundup. If you’ve watched TV in the past few years, you’ve probably seen an ad claiming glyphosate—an ingredient in Roundup—causes cancer and looking to drum up clients for a lawsuit. But that claim is at odds with what the Environmental Protection Agency and many other national and international regulators have determined, which is that glyphosate does not cause cancer in humans. That hasn’t stopped plaintiffs’ lawyers, who started an advertising blitz in 2018 and caused Roundup lawsuits to skyrocket from 2,000 to nearly 130,000. Some of these lawsuits have resulted in massive verdicts (commonly known as a ‘nuclear verdict’ of $10 million or more), despite the scientific evidence to the contrary.
Now, Bayer Monsanto has sought review from the high court of one such verdict. The plaintiff in the case claimed that Roundup needed to have a cancer warning label under California law. That’s different than the position of the EPA, which said it wouldn’t approve labels like the one the plaintiff wanted to put on Roundup. The plaintiff nevertheless obtained a multimillion dollar verdict from a California jury, and the Ninth Circuit upheld it. Now the company is asking the Supreme Court to reverse the Ninth Circuit’s decision and enforce federal law.
The company says the Ninth Circuit erred when it ruled the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) didn’t preempt states from imposing their labeling standards on federally regulated products. But Congress was clear when it wrote FIFRA that it did not want 50 different labeling regimes, and the Supreme Court affirmed this understanding in its 2005 Bates v. Dow Agrosciences decision, saying that state-required labels must be “genuinely equivalent” or they are preempted. If this were not the rule, companies would have to deal with a patchwork of state requirements and a patchwork of lawsuits like those Bayer Monsanto faces now.
Unfortunately, the case lost a key ally—the federal government—for what appears to be political, not scientific, reasons. The government sided with Bayer during the Ninth Circuit argument, and as recently as April 2022, the EPA “continues to stand behind its robust scientific evaluation” and conclusion that glyphosate does not cause cancer in humans. Regardless, the Solicitor General’s office changed its legal position “in light of the court of appeals’ decision and the change in Administration.”
This change in position didn’t go unnoticed. In May, a coalition of farm groups sent a letter to the White House, raising concerns. And for a good reason: with disruption to the supply chain and increases in fertilizer prices, the last thing farmers need is for it to be more expensive to protect their crops.
Trial lawyers hope the Court won’t take this case because continued recognition of the broad preemption under FIFRA would cut down on their ability to pursue these lawsuits and their attorneys’ fees. The Supreme Court should hear this case and make it clear, once and for all, that FIFRA preempts contrary state law and state-based claims.
