ALF Amicus Letter Explains That Federal Law Preempts Roundup® Product Liability Suit

The personal-injury plaintiffs’ bar has filed a multitude of product liability suits around the United States alleging that Monsanto Company, the manufacturer of Roundup® weed control products, failed to warn of a cancer risk. Monsanto has asked the California Supreme Court to overturn the adverse judgment in one of these cases, including on the ground that the plaintiff’s failure-to-warn claim is preempted by the federal pesticide regulatory statute. ALF’s amicus letter urges the Court to review that issue, especially since the U.S. Environmental Protection Agency has determined that the Roundup® active ingredient does not pose a cancer risk.

Issue Areas:

Free Enterprise, Sound Science

Case:

Johnson v. Monsanto Co., No. S264158 (California Supreme Court) (petition-stage)

Read the Amicus Brief:
Question(s) Presented:

Whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)—the federal pesticide statute administered by the U.S. Environmental Protection Agency (EPA)—preempts the plaintiff’s failure-to-warn claims.


Additional Background:

This is a bellwether product liability case in which Monsanto Company, manufacturer of widely used Roundup® weed control products, filed a petition seeking California Supreme Court review of an adverse state court verdict and damages award. The plaintiff, a former school groundskeeper, claims that he developed a form of cancer as a result of using Roundup® products, and that Monsanto’s federally regulated and approved product labeling failed to warn him of the alleged cancer risk.  The U.S. Environmental Protection Agency (EPA), which administers FIFRA and has extensively studied glyphosate (the active ingredient in  Roundup® ), had determined that it does not pose a cancer risk.

ALF’s Amicus Brief:

ALF filed an amicus letter in support of Monsanto’s petition for review. The letter focuses on one of several issues raised by Monsanto’s appeal: the immediate need for the California Supreme Court to address the question of whether FIFRA expressly and/or impliedly preempts the plaintiff’s failure-to-warn claims. The amicus letter argues “the fact that Johnson arises in California, which is the nation’s most economically important agricultural state, and challenges the adequacy of the federally regulated health and safety warnings on the labeling of Roundup® —the State’s and nation’s most widely used agricultural and residential herbicide,” makes the case particularly significant.

ALF’s amicus letter explains that EPA has exclusive authority under FIFRA to determine what warnings should be included on a pesticide product’s nationally uniform labeling.  After years of extensive review of toxicology and other scientific data, EPA has determined that glyphosate, the active ingredient in Roundup®, does not pose a risk of cancer. As a result, EPA has notified Monsanto and other producers that adding a cancer warning to the labeling of their glyphosate products would be false and misleading, and thus violate FIFRA’s prohibition against distributing pesticide products that are misbranded.

Commenting on the Foundation’s amicus letter, ALF Chairman & President Hayward “Dan” Fisk stated that “the California Supreme Court needs to review the Johnson case and hold that a pesticide manufacturer cannot be held liable for failing to include on product labeling a warning that EPA, an expert federal agency, not only has determined is scientifically unwarranted, but also would violate federal law.”

Status:

The petition for review was denied on October 22, 2020.

Date Originally Posted: September 10, 2020

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