ATLANTA (Legal Newsline) - The 11th Circuit Court of Appeals has agreed to reconsider its earlier decision denying Bayer AG’s request to dismiss failure-to-warn claims against Roundup herbicide because they are preempted by federal labeling law.
The appeals court ordered an en banc review of a three-judge panel’s decision in July denying the preemption defense. Bayer argues the product sold by its Monsanto unit doesn’t cause cancer and it would violate federal law to put a warning label on Roundup to avoid lawsuits under Georgia state law claiming it does.
The fight over preemption is critical to Bayer’s efforts to wrap up litigation over glyphosate, one of the most widely used chemicals on earth. Plaintiff lawyers in the U.S. seized upon statements by a European cancer agency that Roundup’s active ingredient can cause cancer to recruit tens of thousands of plaintiffs who claim they were made sick, mostly by using the product around the home. Epidemiological studies have failed to show any link between glyphosate and cancer among agricultural workers who are exposed to far higher amounts of the chemical.
The three-judge panel rejected Bayer’s preemption argument because it ruled a key portion of the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, requiring chemical companies to register their products doesn’t carry the weight of law sufficient to overrule state common law. The federal law prohibits states from requiring labeling “in addition to or different from” federal labels, the panel ruled. But it also requires warning labels “to protect health and the environment.”
The actual process of registering a label is administrative and doesn’t have the effect of law, the panel went on, since companies are required to amend their labels if they discover new information and can’t argue the mere fact of registration protects them against regulatory violations.
The larger appeals court will consider whether Bayer’s preemption argument can survive this technical interpretation. The company preserved the matter for consideration by settling with plaintiff John Carson under an agreement he pursue an appeal of the preemption claim.
Bayer hopes eventually to get to the U.S. Supreme Court, which rejected its appeal of a large California Roundup verdict earlier this year. Meanwhile, it has agreed to pay more than $10 billion to settle many of the cases against it even as others go to trial and it continues to sell Roundup.
“We are pleased with the decision and look forward to presenting our legal arguments to the full Eleventh Circuit,” a Bayer spokesperson said. “A cancer warning on the company’s glyphosate-based Roundup would conflict with its EPA-approved labeling, render the product misbranded, and would be contrary to the consistent conclusions of EPA’s scientific assessments for more than four decades.”