Attorney General Bonta Files Amicus Brief Opposing Preemption of State Failure-to-Warn Claims

OAKLAND - California Attorney General Rob Bonta today, as part of a multistate coalition of 17 attorneys general, filed an amicus brief before the U.S. Supreme Court in Monsanto v. Durnell, arguing against preemption of state failure-to-warn claims. The lawsuit was brought in Missouri state court by a plaintiff, Mr. John Durnell, alleging that he developed non-Hodgkin's lymphoma as a result of using Roundup. Mr. Durnell used the product for two decades because he believed it was safe, relying on its marketing and labeling, and did so without taking any additional safety precautions. Roundup is manufactured by Monsanto and contains glyphosate, a chemical on California's Proposition 65 list of carcinogens.

Following a jury verdict against Monsanto, a court awarded $1.25 million in compensatory damages for strict liability failure-to-warn to Mr. Durnell. Monsanto appealed, arguing that the lawsuit and any state law failure-to-warn claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA requires that manufacturers register a pesticide with the U.S. Environmental Protection Agency (EPA) before it can be sold or used. The EPA has declined to require a warning label indicating that glyphosate is carcinogenic, despite glyphosate's having been classified as a probable human carcinogen by the International Agency for Research on Cancer. Last April, Monsanto filed a petition for certiorari with the U.S. Supreme Court to review a Missouri appellate court's ruling that upheld the jury verdict, and the Court agreed to consider whether FIFRA preempts label-based failure-to-warn claims where EPA has not required the warning.

"Federal law does not - and should not - stand in the way of state failure-to-warn claims," said Attorney General Bonta. "State law claims are essential tools, filling the gaps when federal regulations do not, to keep companies accountable and ensure that every person can make informed decisions and seek relief when harmed by the products they use. I, alongside my fellow attorneys general, urge the Court to continue upholding these important protections for consumers and public health."

In the brief, the coalition argues that federal regulation does not preempt state laws that protect public health and urges the court to find that FIFRA does not preempt state failure-to-warn claims on the basis that:

• FIFRA does not preempt state rules that are fully consistent with federal requirements to warn workers and consumers about chemical risks, even if EPA disagrees that a particular chemical poses a risk.
• In Bates v. Dow Agrosciences, the Supreme Court confirmed that FIFRA does not preempt any state-law requirements that are consistent with FIFRA's labeling standards.
• Monsanto can comply with both state and federal law by ensuring their labels meet federal requirements under FIFRA while providing sufficient warnings and safety information to satisfy applicable state law.