ALF Supports California Supreme Court Review Of Roundup Product Liability Case
ALF Chairman & President Dan Fisk and ALF Executive Vice President & General Counsel Larry Ebner have submitted an amicus curiae letter to the California Supreme Court urging review of Pilliod v. Monsanto Co., a Roundup failure-to-warn suit. According to Monsanto’s Petition for Review, filed by ALF Board of Directors member David Axelrad of Horvitz & Levy LLP and co-counsel, the Pilliods’ award of $69 million in punitive damages (as well as millions of dollars in compensatory damages) is the largest punitive damages award ever to survive California state-court appellate review. Consistent with ALF’s mission of advocating for sound science in the courtroom, the Foundation’s amicus letter contends that state-law claims premised on failure to warn about a product’s alleged risk of causing cancer are preempted where an expert federal agency, here the Environmental Protection Agency (EPA), has made a scientifically based determination that such a warning is not required because the product does not pose a risk of cancer in humans.
Like thousands of similar Roundup claims, the plaintiffs allege that Monsanto failed to warn them that exposure to Roundup herbicide caused them to develop cancer. This allegation directly conflicts with EPA’s scientifically based determination that glyphosate (the active ingredient in Roundup) does not cause cancer, and thus, that a cancer warning is scientifically unwarranted and not required on Roundup labeling. In fact, EPA notified glyphosate producers that adding a cancer warning to their product labeling would be false and misleading and a violation of federal law.
Through the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Congress gave exclusive authority to EPA to determine, based on toxicology and other types of scientific data, what specific health and safety warnings should be provided on a particular herbicide’s (or other pesticide’s) labeling. See 7 U.S.C. § 136v(b) (expressly preempting States from imposing any requirements for labeling that are “in addition to or different from” the labeling requirements imposed under FIFRA by EPA).
ALF’s Amicus Brief:
ALF’s amicus letter focuses on the reasons why FIFRA both expressly and impliedly preempts Roundup-related failure-to-warn claims. The letter explains that
“it is difficult to imagine a more clear-cut case than this for federal preemption of state-law, pesticide-related, failure to warn claims.”
In addition, the letter emphasizes the importance of the case:
“The fact that this case arises in California, where a multitude of pesticides are used in residential, agricultural, and other settings every day, and involves Roundup, the nation’s most widely used herbicide and the target of thousands of failure-to-warn claims, makes this case even more significant.”
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The extent to which FIFRA preempts pesticide-related failure-to warn claims is an exceptionally important recurring question in California—especially in view of the continuing proliferation of individual, mass-action, and class-action personal injury suits that call upon superior court juries to second-guess EPA’s scientifically based determinations regarding what product-specific health and safety warnings should be provided.
Status:
After the California Supreme Court denied the petition for review, Monsanto sought certiorari in the U.S. Supreme Court. Certiorari was denied on June 27, 2022.
