PHILADELPHIA – A federal appellate court’s concurrence with the makers of weedkiller Roundup, in opining that federal law preempts Pennsylvania law requiring Monsanto include a cancer warning on its label, sets up a possible review by the Supreme Court to resolve a circuit split.
On Aug. 15, a panel trio from the U.S. Court of Appeals for the Third Circuit ruled in favor of defendant Monsanto and against plaintiffs David Schaffner Jr. and Theresa Sue Schaffner, with Judge Michael A. Chagares authoring the Court’s opinion. The Ninth and Eleventh have already ruled on similar issues.
“This appeal presents the question of whether, once the Environmental Protection Agency registers and approves a pesticide label that omits a particular health warning, a state-law duty to include that warning is pre-empted by a federal statute expressly preempting any state-law pesticide labeling requirement that differs from or adds to the requirements imposed under federal law. Plaintiffs David Schaffner, Jr. and Theresa Sue Schaffner allege that defendant Monsanto Company violated Pennsylvania law by omitting a cancer warning from the label of its weed-killer, Roundup,” Chagares said.
“But the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the federal statute that regulates pesticides such as Roundup, mandates nationwide uniformity in pesticide labeling by prohibiting states from imposing labeling requirements that are in addition to or different from the requirements imposed under FIFRA itself. This provision, Monsanto argues, pre-empts the Pennsylvania duty to warn that it allegedly breached. Because 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 following an extensive review of scientific evidence concerning Roundup’s possible carcinogenicity, we conclude that the alleged state-law duty to include the Cancer Warning on Roundup’s label imposes requirements that are different from those imposed under FIFRA, and that it is therefore pre-empted by FIFRA.”
Plaintiff David Schaffner Jr. was diagnosed with non-Hodgkins lymphoma in 2006, an allegations which many plaintiffs suing Monsanto over Roundup claims put forward – and along with his wife Theresa, sued Bayer (which acquired Monsanto in 2018) for damages in 2019.
Chagares explained that a prior ruling in favor of the Schaffners in the U.S. District Court for the Western District of Pennsylvania was tied to separate, consolidated multi-district pre-trial proceedings, which held that FIFRA did not pre-empt state-law tort duties to include the cancer warning on Roundup’s label – thus, the Third Circuit reversed that District Court ruling.
According to Chagares and his colleagues, Third Circuit judges Peter J. Phipps and Cindy K. Chung, “Monsanto’s alleged violation of the Pa. Duty to Warn does not constitute a violation of [Roundup’s] pre-approval regulation. We thus conclude that the Schaffners’ failure-to-warn claim is pre-empted.”
However, the Ninth and Eleventh Circuit Courts of Appeal saw the issue differently, ruling such label claims brought under state law were not pre-empted by federal law – and the split in opinions now sets the stage for the final word on the matter to come down from the U.S. Supreme Court.
Monsanto issued a statement on the Third Circuit’s ruling.
“The company is pleased with the unanimous decision from the Third Circuit holding that plaintiff’s state-based warning claims are expressly pre-empted by FIFRA. The Court concluded that ‘the alleged state-law duty to include the Cancer Warning on Roundup’s label imposes requirements that are different from those imposed under FIFRA, and that it is therefore preempted by FIFRA.’ This decision on federal pre-emption, a cross-cutting issue in this litigation, creates a circuit split among the federal appellate courts and necessitates a review by the U.S. Supreme Court to settle this important issue of law. The company is considering the impact of this ruling on other pending litigation and looks forward to presenting its arguments, as fully embraced by the Third Circuit, to the U.S. Supreme Court,” Monsanto said in a statement.
“Bayer continues to stand fully behind its Roundup products, as the weight of scientific evidence and the conclusions of expert regulators worldwide continue to support the safety of glyphosate-based herbicides and that they are not carcinogenic.”
Bayer discontinued sales of Roundup for personal home use last year.
While Bayer settled the vast majority of Roundup-based lawsuit against it in 2020 for $10.9 billion, well over 50,000 such cases against the company remain to be decided.
U.S. Court of Appeals for the Third Circuit case 22-3075
U.S. District Court for the Western District of Pennsylvania case 2:19-cv-01270
Allegheny County Court of Common Pleas case GD-19-007729
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com