U.S. Appeals Court Finds Roundup Failure to Warn Claims Preempted by Federal Law

Bayer and its Monsanto subsidiary are hoping that an avenue to challenge all Roundup cancer lawsuit before the U.S. Supreme Court will be provided by a federal appeals court’s recent decision, which determined that state law-based claims over the failure to warn about the risk of non-Hodgkin’s lymphoma are preempted by federal law.

Over the past decade, the companies have faced more than 120,000 product liability lawsuits involving allegations that it failed to disclose the side effects of Roundup, and its active ingredient glyphosate. Each claim alleges that the manufacturer knew about potential cancer risks linked to the popular herbicide, but failed to provide adequate warnings to farmers, landscapers and other agricultural workers who were exposed to the chemical on a regular basis.

Although Bayer and Monsanto have paid more than $10 billion in Roundup settlements, the manufacturers continue to face thousands of active lawsuits in the U.S. court system, and new claims continue to be filed as former users of the weed killer develop non-Hodgkin’s lymphoma and other forms of cancer.

To avoid liability, the companies have repeatedly presented arguments that federal laws prohibited them from adding cancer warning labels to Roundup products, indicating that the U.S. Environmental Protection Agency (EPA) must approve warning labels for U.S. pesticide products under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). When the agency approved the Roundup warnings, it did not require the company to provide information about the risk of non-Hodgkin’s lymphoma or other cancers.

The companies have maintained that because Monsanto was bound by federal rules, it was not allowed to put a cancer warning on Roundup, even if it had wanted to. Therefore, the companies say “failure to warn” claims filed at the state level are preempted by federal law.

On August 15, the U.S. District Court for the Third Circuit agreed after hearing an appeal by Bayer over a verdict in favor of David and Theresa Schaffner, who filed a Roundup lawsuit after David Schaffner developed non-Hodgkin’s lymphoma in 2006. In its opinion (PDF), the appeals court ruled that Bayer and Monsanto could not have adhered to the Pennsylvania state law warning requires due to the federal restrictions on updating the weed killer’s label.

“Because regulations promulgated to implement FIFRA require the health warnings on a pesticide’s label to conform to the proposed label approved by the EPA during the registration process, and because during Roundup’s registration process the EPA approved proposed labels omitting a cancer warning following an extensive review of scientific evidence concerning Roundup’s possible carcinogenicity, we conclude that the alleged state-law duty to include the Cancer Warning on Roundup’s label imposes requirements that are different from those imposed under FIFRA, and that it is therefore preempted by FIFRA,” the appeals court wrote in its ruling.

Roundup Lawsuit Circuit Court Split

The decision comes after a contradictory ruling was issued by the Eleventh Circuit in February 2024, in which that appeals court rejected an attempt by the manufacturers to dismiss a nearly identical lawsuit. That court ruled compliance with FIFRA labeling rules does not prevent consumers from pursuing failure to warn claims under state law.

In a press release announcing the Third Circuit decision, Bayer notes that there are now contradictory rulings by two federal appeals courts, which is often the basis of taking a case to the U.S. Supreme Court for an overarching precedential decision.

“This decision on federal preemption, a cross-cutting issue in this litigation, creates a circuit split among the federal appellate courts and necessitates a review by the U.S. Supreme Court to settle this important issue of law,” Bayer said in its statement. “The Company is considering the impact of this ruling on other pending litigation and looks forward to presenting its arguments, as fully embraced by the Third Circuit, to the U.S. Supreme Court.”

The final impact of the ruling depends on whether Bayer pursues an appeal to the Supreme Court, if the high court decides to even hear the case, and if so, what it’s ultimate decision will be.

August 2024 Roundup Lawsuit Update

After failing to secure dismissal of Roundup lawsuits under federal preemption in the Eleventh Circuit, hundreds of claims brought at the federal court level are currently being prepared for trials nationwide. However, most of the U.S. litigation is pending in state courts, including Missouri, Pennsylvania, New Jersey and California, where a series of non-Hodgkin’s lymphoma lawsuits are already scheduled to go before juries in the coming months.

Although Bayer continues to defend the use of glyphosate, the company has failed to establish that it can consistently defend the safety of the herbicide at trial, suffering a string of massive losses in state court trials over the past year, including the largest Roundup lawsuit verdict to date, $2.2 billion, handed down by a Pennsylvania state court jury in January. It was later reduced to $400 million. That verdict was preceded by a $1.5 billion verdict in November 2023, and a slew of others plaintiff victories last year.

To limit liability from the Roundup failure to warn lawsuits, Bayer has announced that it will remove the active ingredient glyphosate from consumer products, while keeping the formulation for large agricultural users. However, it is still expected that Bayer will continue to face a steady stream of trials for years to come, unless it appeals to the Supreme Court and the court rules in the company’s favor.