Bayer is hailing a decision by the 11th Circuit Court of Appeals to reconsider the court’s judgment in a case involving the question of whether federal pesticide law trumps state failure-to-warn claims.

The company has so far failed to persuade the Supreme Court to take up the issue, but a favorable ruling from the 11th Circuit – that the Federal Insecticide, Fungicide, and Rodenticide Act pre-empts states from imposing label requirements “in addition to or different from” those imposed under FIFRA – would enhance its chances to do so by creating a split in the circuit courts.

And if the Supreme Court were to rule for Bayer on FIFRA pre-emption, that would likely erase approximately 30,000 remaining filed cases and claims from people alleging exposure to Roundup caused their cancers – as well as any future claims that might arise. 

The appeals court said Monday it was granting the company’s rehearing petition, which was backed by the U.S. Chamber of Commerce and CropLife America, which represents pesticide companies.

The one-page opinion issued by the court vacated its Oct. 28 opinion, which had reversed a district court decision that found FIFRA pre-empted the failure-to-warn claim brought by John Carson, a Georgia resident who claimed Roundup caused his cancer. 

“The decision by the 11th Circuit to vacate the panel’s adverse decision in Carson and hear argument en banc on the cross-cutting issue of federal preemption in the Roundup litigation is one of the most important developments in the seven-year history of this litigation,” said Bill Dodero, Bayer's global head of litigation and incoming U.S. general counsel. 

In a statement, Bayer said it was happy with the decision and is looking forward “to presenting our legal arguments to the full 11th Circuit that the panel’s decision effectively nullified FIFRA’s statutory uniformity provision and is contrary to Supreme Court precedent.

“A cancer warning on the company’s glyphosate-based Roundup would conflict with its EPA-approved labeling, render the product misbranded, and would be contrary to the consistent conclusions of EPA’s scientific assessments for more than four decades,” Bayer said.

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Appeals court cases are generally heard by three judges, but courts can decide to rehear decisions en banc, which usually means all of the court’s judges take part. In the Carson case, that means the 10 active judges who took part in the rehearing decision, as well as a senior judge who was on the panel that issued the Oct. 28 decision, would be on the en banc panel. 

The high court in June rejected a petition that sought review of the 9th Circuit’s Hardeman decision, which found FIFRA does not block state tort law claims such as those brought by Carson. Agricultural groups strongly protested the Biden administration’s decision to file an amicus brief that backed California’s opposition to that petition. The court subsequently rejected a second Bayer petition raising the same question. 

But when the Hardeman petition was turned down, Bayer said "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."

The Supreme Court often takes up cases in order to resolve conflicting decisions by federal appellate courts. In an interview, Dodero said a clear split between the 11th Circuit and 9th Circuit would create a situation that "makes a Supreme Court intervention all the more probable, at least, and required because you wouldn't want to have a persistent inconsistency" in the circuit courts.   

No hearing date has been set.

The case was the subject of controversy when lawyers who had brought cases against Bayer said the company was involved in a “pay to appeal” scheme that involved paying Carson $100,000 if he pursued an appeal on the failure-to-warn claim. 

The company, however, said at the time that it had been “completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds, and this settlement, which the plaintiff voluntarily agreed to, is an appropriate path for such an appeal.”

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