Mere Compliance With FIFRA Is Not Always Enough To Preempt Failure To Warn Claims On Pesticide Labels

• Published date: 27 July 2022
• Subject Matter: Environment, Environmental Law
• Law Firm: Taft Stettinius & Hollister
• Author: Mr E. Chase Dressman and Michael L. Meyer

The United States Court of Appeals for the 11th Circuit recently addressed and limited the scope of federal preemption available under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for state law tort claims based on alleged failure to warn of potential dangers associated with registered products. The ruling in Carson v. Monsanto Co. could have far reaching impact, as it states that even strict compliance with labeling requirements imposed by FIFRA and the Environmental Protection Agency (EPA) may not insulate against state law toxic tort claims.

FIFRA requires EPA approval of pesticides through a comprehensive licensing and registration scheme before such products are sold or distributed in the U.S. Among other requirements, companies seeking to register a FIFRA-regulated pesticide product must submit a proposed product label to the EPA. EPA then evaluates the entire label to ensure the adequacy of proposed usage instructions and to verify the absence of any false or misleading statements about the product. To incentivize compliance and promote uniform enforcement of pesticide products, FIFRA also contains a provision that preempts state laws that impose "requirements for labeling or packaging" that are "in addition to or different from" the labeling or packaging requirements under FIFRA. However, FIFRA does not preempt state-based laws for labeling or packaging that are "equivalent to, or consistent" with, the labeling and packaging requirements in FIFRA.

In the Carson case, an individual consumer sued Monsanto, the manufacturer of RoundUp (a glyphosate herbicide), claiming exposure to the product caused his cancer. One of his claims was that Monsanto failed to properly warn him of the dangers of RoundUp through inadequate labeling, and thus violated Georgia product liability law. Monsanto took the position that it could not impose such a warning without running afoul of FIFRA's labeling requirements because EPA had determined that glyphosate was not likely to be carcinogenic to humans. In other words, Monsanto argued that to label the product in accordance with Carson's theory would have been a violation of federal law (FIFRA). The district court agreed and held that Carson's failure to warn claim was preempted by FIFRA.

The 11th Circuit reversed. In holding that the failure to warn claim is not preempted, the court studied whether Georgia law imposed labeling and warning requirements that differ from, or add further restrictions...