California Appeals Court Issues Controversial Decision In Roundup Appeal


California (August 13, 2020) – Atlantic Legal Foundation Senior Vice President & General Counsel Larry Ebner recently authored an analysis for the Washington Legal Foundation’s (WLF) Legal Pulse blog discussing the California First District Court of Appeal’s July 20, 2020 opinion in Johnson v. Monsanto Co., a personal injury case involving Monsanto’s Roundup herbicide. Mr. Ebner’s analysis discusses why the court erred in holding that the Federal Insecticide, Fungicide, & Rodenticide Act (FIFRA) does not preempt the plaintiff’s failure-to-warn claims, even though that federal pesticide statute vests the U.S. Environmental Protection Agency (EPA) with exclusive authority to determine what warnings should be included on a pesticide product’s labeling.

The plaintiff claimed that Monsanto, Roundup’s manufacturer, should have included a cancer warning despite the fact that the EPA specifically determined that including a cancer warning would be false and misleading. According to Mr. Ebner, the California court’s “preemption ruling not only is wrong as a matter of law, but also encourages the national plaintiffs’ contingency fee bar to continue using misleading TV commercials and other media to troll for so-called “victims” of federally approved or highly regulated products.”