Twenty states and the District of Columbia are opposing Monsanto in a case before the Supreme Court involving whether federal pesticide law preempts lawsuits alleging state failure-to-warn claims.
The company, an indirect subsidiary of Bayer, argues that the Federal Insecticide, Fungicide, and Rodenticide Act expressly preempts such claims. In January, the court accepted the company’s petition to review a $1.25 million verdict granted to a Missouri man who alleged that exposure to Roundup herbicide caused his non-Hodgkin lymphoma, yet the label did not warn of the danger.
Monsanto recently proposed a $7.25 billion settlement to resolve thousands of remaining claims and stands to benefit if the court rules for it. One of the amicus briefs filed in the case Wednesday is from lawyers representing plaintiffs in litigation involving both Roundup and paraquat.
“FIFRA preserves a broad role for state regulation of pesticides — including the power to ban a federally registered pesticide,” those attorneys say in their brief. “Against that backdrop, Monsanto’s claim that FIFRA strips States of the lesser authority to require reasonable warnings lacks merit.”
The United States, farming and grower groups, pesticide manufacturers, and 15 states, including Nebraska, Iowa and Missouri, have already filed amicus briefs backing Monsanto. Wednesday brought amicus briefs supporting Durnell, including two from separate groups of states: one including Texas, Florida and Ohio, and another led by New Mexico along with 16 other states and the District of Columbia.
“The regulation of the distribution of poisonous substances falls squarely within the historic police powers of the states,” the Texas-Florida-Ohio brief says. “Preemption through strict federal agency action poses particular threats to state sovereignty.”
The states say they're not taking a position "on the merits of the underlying claims, including whether exposure to glyphosate caused [Durnell’s] cancer and whether the use of glyphosate-based pesticides is desirable as a matter of policy.”
Instead, they “emphasize that these decisions should be made under state law, not by a federal agency. State tort law is the traditional regulatory scheme for poisonous substances, and it serves vital compensatory and deterrent purposes.”
The New Mexico-led brief says nearly all states “allow common law failure-to-warn claims against pesticide manufacturers” but notes that North Dakota and Georgia have passed laws “expressly prohibit[ing] manufacturer liability for failure to warn.”
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“[I]nconvenience to Monsanto is no reason to preempt state law where federal law allows considerable latitude,” the states’ brief says.
“Congress has made an informed decision not to amend FIFRA to preempt claims such as [Durnell’s], and this court should defer to the democratic process,” the brief says.
There have been attempts in Congress, most recently through the House Ag Committee Republicans’ farm bill, to write the preemption into law, but Democrats have decried that provision as a “poison pill” that dooms the legislation.
The 15-state brief led by Nebraska says FIFRA (which it quotes) “expressly preempts any state labeling requirement that is ‘in addition to or different from those required’ by FIFRA. Because state law failure-to-warn claims challenge the adequacy of a federally approved label, such claims may be preempted under FIFRA’s express preemption provision.”
In addition, they say that “states value their access to affordable glyphosate products, and it is neither appropriate nor lawful to permit other states’ laws to jeopardize that access. Congress has already drawn the line between permissible and impermissible state regulation of glyphosate.”
States, they say, “can choose to regulate glyphosate within the confines of FIFRA, including prohibiting or restricting its sale or use within their borders.”
The case, which has drawn plenty of interest, will be argued April 27. Other amicus briefs backing Monsanto have been filed by the U.S. Chamber of Commerce, Agricultural Retailers Association, National Agricultural Aviation Association and the National Tort Reform Association.
Briefs filed Wednesday backing Durnell came from – among others – Sen. Cory Booker, D-N.J., Farmworker Justice and several farmworker groups, Public Citizen, and the Veterans of Foreign Wars.
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