The Supreme Court denied a petition from Monsanto Tuesday to review a federal appeals court ruling that found the Federal Insecticide, Fungicide, and Rodenticide Act does not preempt state tort-law claims.
More than 100,000 of such claims, alleging exposure to Roundup caused cancer, have been settled, but more than 30,000 wait in the wings.
Monsanto, acquired by Bayer in 2018, is the legal entity that filed the petition. At least four justices must vote to accept a petition for review.
More specifically, the question raised by Monsanto was whether states can put language on a pesticide label that differs from the federal label. Monsanto and its supporters argue that FIFRA expressly prohibits “any requirements for labeling or packaging in addition to or different from those required” by FIFRA.
Monsanto is not done at the court, however. Another petition seeking review of a California Court of Appeal decision in a similar case is pending, and the court will discuss it at a conference set for June 23.
In a statement, Bayer — which bought Monsanto in 2018 — said it "respectfully disagrees" with the Supreme Court’s decision. "The company believes that the decision undermines the ability of companies to rely on official actions taken by expert regulatory agencies, as it permits every U.S. state to require a different product label, which conflicts with the clear intent of the 'uniformity clause' adopted by the U.S. Congress in FIFRA and similar statutes.
"While this decision brings an end to the Hardeman case, there are likely to be future cases, including Roundup cases, that present the U.S. Supreme Court with preemption questions like Hardeman and could also create a circuit split."
Lawyers for California cancer victim Edwin Hardeman contended that FIFRA does not preempt the failure-to-warn claims in his case, pointing to a previous Supreme Court decision that held FIFRA “does not preempt state-law failure-to-warn claims that are substantively equivalent to, or narrower than, federal misbranding requirements,” according to Hardeman’s opposition brief in the Supreme Court.
They also said there was no split in the federal appeals courts on the issue, an important factor for the Supreme Court in deciding whether to grant review of an appellate court decision.
"Recognizing that there is no split in authority, Monsanto pivots to the curious argument that this court should grant review because all future federal cases will necessarily be decided" as part of pending multi-district litigation, they said in their brief.
"That argument is both misguided and self-centered," Hardeman's attorneys said. "It is misguided because an assurance of uniformity in the law is a ground for denying rather than granting certiorari. It is self-centered because it presumes that whether failure-to-warn claims involving Roundup are preempted is a question of great national significance worthy of this court’s attention. While that question is surely important to Monsanto, this court does not serve one company or show special concern for one product."
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Monsanto said the case was significant as a "bellwether" for other pending cases. "The [9th Circuit] decision below will control thousands of other federal suits, and undoubtedly influence still others pending across the country," its petition said.
Another issue in the case concerned admission of expert testimony
The 9th Circuit said the district court was correct, under what is known as the Daubert standard, in allowing the testimony of Hardeman’s scientific experts, and “did not abuse its discretion in admitting the International Agency for Research on Cancer’s classification of glyphosate as probably carcinogenic and three regulatory rejections of that classification,” while at the same time excluding evidence from other regulatory bodies.
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This story originally said the Pilliod petition sought review of a California Supreme Court decision. The decision is from the California Court of Appeal.