Roundup Litigation Twist: Courts Deny Preemption Defense

The last several months have brought significant developments in the ongoing litigation involving glyphosate-based pesticide products, specifically Roundup, and their alleged link to cancer. Plaintiffs in these lawsuits argue that Monsanto Co., which was acquired by Bayer in 2018, failed to warn consumers about the significant health risks associated with using Roundup. Since the first lawsuits were filed in 2016, tens of thousands of cases have emerged, and recent rulings by the Eleventh and Ninth Circuit Courts of Appeals have added new layers of complexity to the litigation landscape.

In one of the most pivotal recent developments, the Eleventh Circuit Court of Appeals denied an en banc review of a three-judge panel’s decision in Carson v. Monsanto, No. 21-10994 (11th Cir. 2024). The denial marks a critical moment in a lawsuit that has been intensely focused on whether state law tort claims, specifically failure-to-warn claims, should be preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The plaintiff argued that Monsanto failed to warn him that using glyphosate could lead to non-Hodgkin’s lymphoma, a claim Monsanto contended was preempted by FIFRA, which restricts states from adding language to federally approved labels.

The Eleventh Circuit’s decision to uphold the three-judge panel’s ruling aligns with a previous Ninth Circuit decision in Hardeman v. Monsanto, No. 19-16636 (9th Cir. 2021). Both courts concluded that failure-to-warn claims are not preempted by FIFRA, reasoning that such claims run parallel to FIFRA’s prohibition on misbranding. Under FIFRA, a pesticide is considered misbranded if its labeling is false or misleading. Therefore, if Monsanto failed to warn consumers about the carcinogenic risks of glyphosate, the product would be misbranded under FIFRA’s guidelines.

By refusing to rehear the case en banc, the Eleventh Circuit has effectively solidified its stance, which allows thousands of plaintiffs to continue arguing that pesticide manufacturers failed to warn them of health risks, even if the federal label does not require such warnings. This decision is likely to influence other courts considering similar preemption issues, making it a focal point in ongoing litigation.

Meanwhile, the Ninth Circuit Court of Appeals recently upheld a $23 million settlement agreement in a nationwide class action lawsuit against Bayer. This settlement, reached in 2022, aimed to resolve claims that Monsanto failed to disclose the carcinogenic risks of Roundup. Under the agreement, plaintiffs could receive up to 20% of the price they paid for Roundup products. However, two plaintiffs objected, arguing that the settlement awarded them only a fraction of the potential damages they could have received from ongoing litigation in Missouri.

The Ninth Circuit dismissed these objections, noting that the Missouri class action was narrower in scope and would not necessarily provide a better outcome for the plaintiffs. The court also found no evidence of collusion in the settlement process, further solidifying the agreement.

These rulings have significant implications for the broader scope of glyphosate litigation. The Eleventh Circuit’s decision strengthens the position of plaintiffs who argue that their failure-to-warn claims are not preempted by federal law, potentially encouraging more lawsuits. On the other hand, the Ninth Circuit’s upholding of the settlement agreement may prompt other plaintiffs to seek similar resolutions, providing a pathway for Bayer to manage its legal liabilities.

As these cases continue to unfold, the legal landscape surrounding glyphosate and its alleged health risks remains dynamic and complex. Both the legal and agricultural communities are closely watching these developments, understanding that the outcomes will have far-reaching consequences for pesticide regulation, public health, and corporate accountability.

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