Federal Preemption as a Defense
For over three decades, federal preemption of state failure to warn claims has served as a powerful defense in strict liability tort cases. Courts have consistently dismissed lawsuits challenging the adequacy of warnings for a range of products, including aerosol paints, thinners, cigarettes, medical devices, and pesticides, where federal statutes prohibit state law requirements that differ from federal mandates. However, this defense is now under scrutiny, and its scope and application may soon require clarification by the Supreme Court.
The Roundup Litigation: A Challenge to Preemption
The ongoing Roundup litigation has become the focal point of this attack on preemption. In the 2021 case of Hardeman v. Monsanto Co., the Ninth Circuit held that personal injury failure to warn claims were not preempted, despite the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) containing preemption language similar to other federal statutes where preemption has been upheld.
The Ninth Circuit reasoned that a state tort claim alleging a failure to warn about Roundup’s potential to cause cancer was not preempted because both federal and state labeling requirements were considered parallel and non-conflicting. The court upheld a $5.2 million verdict, including punitive damages, even though:
- The EPA had approved the Roundup label without a cancer warning.
- The EPA advised manufacturers that adding a cancer warning could render the product “misbranded” and subject to litigation.
- The EPA determined that Roundup was not carcinogenic.
- FIFRA prohibited manufacturers from unilaterally altering the label to include a cancer warning.
The Ninth Circuit’s decision, which governs the multidistrict litigation (MDL) for Roundup cases, is not an isolated ruling, as other courts have similarly denied preemption in Roundup cases. That rationale though calls the scope of preemption into question well beyond Roundup and, if read broadly, could undercut years of preemption litigation.
The Third Circuit: A Conflicting Perspective
In contrast, the Third Circuit in Schaffner v. Monsanto Corp. (2024) reached a different conclusion, holding that preemption applied. The court emphasized that the EPA-approved label for Roundup did not include a cancer warning, and federal law required manufacturers to submit any label changes for agency approval. The Third Circuit’s ruling reinforces the argument that federal preemption should bar state law failure to warn claims in these circumstances.
What’s Next? A Potential Supreme Court Review
The conflicting decisions between the Ninth and Third Circuits highlight a critical divide regarding the scope and application of federal preemption in failure to warn claims. These differing interpretations create uncertainty for manufacturers and regulators alike, particularly for products subject to federal agency oversight.
If the Supreme Court elects to resolve this circuit split, it could provide much-needed guidance on the extent of federal preemption and its implications for industries ranging from consumer goods to pharmaceuticals and pesticides. A definitive ruling could solidify preemption as a robust defense or significantly limit its applicability, reshaping the landscape of strict liability claims nationwide.
For now, businesses should monitor developments closely and consult with legal counsel to assess potential risks and strategies in light of this evolving legal doctrine.
