WASHINGTON (Legal Newsline) - The U.S. Supreme Court is scheduled to discuss Thursday whether to accept Monsanto’s appeal of a $25 million jury verdict based on its failure to put a warning label on Roundup herbicide -- a label the Environmental Protection Agency has said would violate federal law.
The case of Monsanto v. Hardeman is particularly interesting because the Biden administration has flipped its opinion from when the lawsuit was before the Ninth Circuit Court of Appeals. Back in 2019, the U.S. Solicitor General unsuccessfully argued the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) prohibited the sort of warning plaintiff lawyers say are required under California law.
Now, the current SG Elizabeth Prelogar argues the opposite, saying in a May 10 brief that there is no conflict between the EPA’s position that Roundup is safe and a California jury’s finding that Monsanto had a duty to warn customers it causes cancer. In that brief, Prelogar acknowledges “the change in administration” had something to do with her office’s about-face. Neither the EPA nor the Agriculture Department signed off on it, in a departure from normal practice when a Supreme Court brief involves issues affecting those agencies.
The political overtones and apparent lack of consultation with regulatory agencies leads critics to charge the Biden administration with adjusting its position to please the trial bar, one of the most important sources of financial support to the Democratic Party. Lawyers and lobbyists contributed $274 million to Democrats in the 2020 election, according to Opensecrets.org, nearly four times as much as labor unions.
“What the Solicitor General has done has been to write a transparently partisan, shortsighted brief that does the plaintiffs’ work” in supporting the Hardeman case and tens of thousands of similar lawsuits, said Lawrence Ebner, executive vice president and general counsel of the Atlantic Legal Foundation, which focuses on challenging what it considers unreliable science in the courtroom.
Monsanto, a unit of Bayer AG of Germany, says it can’t both comply with federal law and place warning labels on Roundup to protect against lawsuits claiming it causes cancer. One of the most widely used chemicals on earth, Roundup’s active ingredient, glyphosate, is considered safe by the EPA and equivalent agencies around the world.
Only the International Agency for Research on Cancer has classified glyphosate as a “probable carcinogen,” in a 2015 report by a committee whose non-voting chairman, Chris Portier, left the agency to work as a hired expert for plaintiff lawyers. U.S. District Judge Vince Chhabria allowed plaintiff experts to testify in the Hardeman case over defense objections they had no scientific basis for their opinion. Most of the lawsuits claim glyphosate causes non-Hodgkin’s lymphoma, one of the most common cancers that experts say has no known cause 75% of the time.
Monsanto has agreed to a $10 billion settlement to resolve nearly 100,000 cancer suits, although it continues to fight the Hardeman verdict. The Supreme Court has ruled on FIFRA’s preemption clause before, deciding in Bates vs. Dow Agrosciences in 2005 that the law preempts “competing state labeling standards” that include different wording from the federal standard.
The Supreme Court also decided in a lawsuit against Medtronic that similar language in a federal medical device law preempted state labeling requirements “different from or in addition to” federal rules.
“The real issue here is whether a judge or a jury under state common law can second-guess the EPA’s carefully considered, science-based determination not only that a cancer warning is unwarranted but it would be false and misleading under federal law,” said Ebner.
The Biden administration disagrees, supporting the Ninth Circuit’s finding that Monsanto’s duty under California law works in “parallel” with federal law requiring labels to include warnings designed to protect the public. The Supreme Court rejected a similar argument in the Medtronic case, however, ruling that a federal law pre-empting state “requirements” included jury verdicts based on state law.
The impact of this case goes far beyond Bayer’s legal woes stemming from its purchase of Monsanto. There is similar preemption language in federal statutes regulating medical devices, meat, poultry, and motor vehicles. And if Monsanto is forced to take glyphosate off the market, farmers will scramble to find alternatives to control weeds that otherwise reduce crop yields.
“By opening the door to an impractical patchwork of state pesticide labeling requirements, farmer and user access to these tools would be threatened,” said a broad coalition of farm groups in a May 23 letter to President Biden. “Such action would reduce crop yields at a time when lives depend on us producing every bushel possible.”
Federal preemption is one of the most important legal questions facing American business, and one that flips traditional positions of liberals and conservatives. Because companies manufacture goods for a nationwide market, they favor consistent federal regulations instead of state or local rules.
The Supreme Court has displayed similar ideological blurring over the issue, repeatedly rejecting federal preemption unless Congress writes statutes with clear and unambiguous terms asserting federal supremacy over state common-law tort actions.
Monsanto and its corporate supporters, including the U.S. Chamber of Commerce, believe Roundup presents a clear case where federal law is supreme.
The EPA has repeatedly examined glyphosate’s safety since it first approved the herbicide for use in 1974, including after IARC classified it as a “probable carcinogen” in 2015. The EPA rejected IARC’s conclusion and in 2019 told manufacturers it would not approve labels with a cancer warning because they would be “false and misleading.”
The EPA repeated that last year, telling the Ninth Circuit “glyphosate is not likely to be a human carcinogen and poses no human-health risks of concern.”