The nation’s pesticide law does not preempt state-law claims such as those that have resulted in multimillion-dollar judgments against Monsanto for Roundup exposure, the nation’s top lawyer said in a brief urging the Supreme Court not to grant the company's request to reconsider a lower court ruling.

The high court should deny the petition submitted by Monsanto, bought by Bayer in 2018, that says the Federal Insecticide, Fungicide, and Rodenticide Act should preempt tort claims brought by Edwin Hardeman in 2015. 

California resident Hardeman claimed his exposure to Roundup from the mid-1980s through 2012 had caused his non-Hodgkin’s lymphoma and that Monsanto had failed to provide warning of the herbicide’s health risks. A federal jury awarded him about $80 million, which included $75 million in punitive damages. A district court judge reduced the punitive damages award to $20 million.

The U.S. Court of Appeals for the Ninth Circuit upheld the judgment against Monsanto, finding Hardeman’s claims were not pre-empted by FIFRA, as argued by Monsanto in its petition to the high court Aug. 16.

The Supreme Court initially distributed the petition for conference in December but decided to seek the views of Solicitor General Elizabeth Prelogar. Five months later, she responded to the court, writing that “although some aspects of EPA-approved labeling may preempt particular state-law requirements, EPA’s approval of labeling that does not warn about particular chronic risks does not by itself preempt a state-law requirement to provide such warnings.”

The pesticide law “makes clear that a particular pesticide may be found to violate FIFRA’s misbranding prohibition even though EPA approved the labeling when registering the pesticide,” the brief says. 

Bayer said it was undeterred. “The company continues to believe there are strong legal arguments to support Supreme Court review and reversal in Hardeman, as its petition and the many amicus briefs filed in support of the petition underscore,” the company said in a statement.

The Environmental Protection Agency “has consistently found that glyphosate-based herbicides can be used safely and are not carcinogenic,” the statement continued. “Therefore, a cancer warning would be false and misleading and would be preempted by [FIFRA].”

“The decision to accept or deny review rests with the Supreme Court, which will consider the views of the parties – including an additional brief to be filed by the company – as well as the brief from the Solicitor General,” Bayer said. “Regardless of the final outcome at the Supreme Court, the company is fully prepared to move forward with its five-point plan, manage litigation risks and bring closure to the Roundup litigation.”

On the other side, Hardeman lawyers Aimee Wagstaff and Jennifer Moore of Andrus Wagstaff said they are “pleased that the Department of Justice has changed its position and now agrees with the trial court and the Ninth Circuit. We’ve always known that the law was on our side and now the federal government agrees. It is a very good day for cancer victims across this country who seek to hold wrongdoers like Monsanto accountable.”

The Trump administration had taken a different stance at the Ninth Circuit, arguing FIFRA “expressly preempts all health-related state pesticide labeling requirements that differ from the labeling approved by EPA,” as the solicitor general’s brief noted.

The company has received support for its petition from the U.S. Chamber of Commerce, drug and pesticide manufacturers, and conservative legal foundations. Its attorney of record is Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, who was solicitor general from 1997-2001, during the Clinton administration.

Monsanto filed another, similar petition in March seeking review of a California Supreme Court decision that also found FIFRA does not preempt state law claims.

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