The US Court of Appeals for the Eleventh Circuit ruled Tuesday that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt a Georgia man from making a failure to warn claim in his lawsuit against Bayer, the manufacturer of the weedkiller Roundup. This decision results from an appeal from the US District Court for the Southern District of Georgia.
FIFRA delegates authority to the EPA to regulate pesticides’ distribution, sale and use. Under this law the EPA has found that a the chemical used in Roundup, glyphosate, is not likely to be carcinogenic to humans and that cancer warning on products containing the chemical is unnecessary.
John Carson used Roundup weedkiller on his lawn for about 30 years. In 2016 Carson was diagnosed with malignant fibrous histiocytoma. Carson then sued Monsanto, the manufacturer of Roundup. He alleged that glyphosate caused his cancer. At trial the district court ruled that Carson’s failure to warn claim, under Georgia law, was preempted by FIFRA.
Senior US Circuit Judge Gerald Tjoflat issued the opinion of the Eleventh Circuit. First, the court ruled that the failure to warn claim is not preempted by FIFRA or the EPA actions pursuant to it. In the ruling, the court explained that only federal action with the force of law can preempt state law. Here the court determined that the EPA’s registration process is not formal enough to carry the force of law.
To determine if there is formal agency action, courts use the test from the case US v. Mead Corp. There the Supreme Court ruled “It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.” In the case at hand, the court ruled that the EPA’s registration process does not pass the Mead test. This is because the EPA has no notice-and-comment rulemaking or formal adjudication in its registration process.
The District Court’s ruling was reversed and remanded for further proceedings. Last month the Supreme Court denied an appeal of a $25 million judgment against Bayer in a similar weedkiller cancer lawsuit.
