{ Banner Image }
Search this blog

Subscribe for updates

Recent Posts

Blog editor

Blog Contributors

Eleventh Circuit En Banc Elaborates upon Express Preemption Analysis in Recent FIFRA Decision

In a recent en banc decision out of the Eleventh Circuit, the Court found that the panel had used an improper standard in holding that a state law failure to warn cause of action was not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and after clarifying the appropriate inquiry, sent the matter back to the panel for further consideration.  In the case, the plaintiff averred that after years of using the popular weedkiller, Roundup, he developed cancer, which he claims Monsanto failed to adequately warn consumers was a risk of using that product.  Carson v. Monsanto Company, 72 F.4th 1261 (11th Cir. 2023).  Monsanto responded that plaintiff’s Georgia state law claims were expressly or impliedly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) because the United States Environmental Protection Agency (“EPA”) approved a label for Roundup which lacked a cancer warning, and classified Roundup’s principal ingredient, glyphosate, as “not likely to be carcinogenic.”    

Monsanto argued that FIFRA’s express preemption provision, 7 U.S.C. § 136v(b), means that state pesticide requirements, including common law causes of action to that effect, are preempted where they require labeling or packaging in addition to or different from that required under federal law, and that a Georgia cancer warning requirement would differ from the Roundup label approved by the EPA.  Plaintiff countered that the EPA’s actions with respect to Roundup did not have the force of law, and therefore, could not expressly or impliedly preempt plaintiff’s Georgia claims.  The District Court agreed with Monsanto and granted its motion for judgment on the pleadings to the extent that plaintiff’s complaint relied upon the lack of a cancer warning in Roundup’s label, finding that even if Monsanto failed to abide by its duty to warn under Georgia law, a cancer warning would conflict with Roundup’s labeling requirements under federal law. 

A panel of the Eleventh Circuit reversed the District Court’s decision, concluding that Georgia’s common law standard for product safety warnings was “less demanding” than the federal prohibition against misbranding pesticides and thus EPA’s approval of  Roundup’s labeling did not preempt plaintiff’s Georgia claims.  The panel elaborated that for there to be express preemption, the EPA’s actions in approving the label must have the “force of law” and then found that EPA’s actions did not.  As a result, the panel overturned the District Court.  Separately, it also rejected Monsanto’s implied preemption argument.  

The Eleventh Circuit subsequently granted rehearing en banc, vacated the panel’s decision, and determined that where Congress has enacted an express preemption provision, courts are to identify the state law that is subject to preemption according to ordinary principles of statutory interpretation.  Therefore, the relevant inquiry is not simply whether the agency has acted with the force of law, but rather whether the express preemption provision of the federal statute in question requires a force of law analysis.  The Eleventh Circuit therefore left it to the panel to evaluate whether the express preemption language in FIFRA, 7 U.S.C. § 136v(b), mandates a force of law analysis prior to determining whether the EPA’s actions with respect to Roundup indeed have the force of law, and if so, whether a Georgia cancer warning for Roundup would be in addition to or different from those requirements, and hence expressly preempted.