On Aug. 15, the United States Court of Appeals for the Third Circuit held in Schaffner v. Monsanto that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a Pennsylvania state-law requirement to include cancer warnings on a pesticide product label if the United States Environmental Protection Agency (EPA) does not require such a warning. The Third Circuit held that Pennsylvania’s requirement is “different” from the requirements under FIFRA as implemented by the EPA and thus is preempted, in contrast to prior rulings on FIFRA preemption in the Ninth and Eleventh Circuits.

FIFRA Overview and Preemption

FIFRA requires the EPA to regulate pesticides and administer their registration, distribution, sale, and use. 7 U.S.C. § 136 et seq.; U.S. EPA FIFRA Overview. Pesticide labels, which the EPA must approve prior to registration, must clearly and prominently display certain information, such as the name of the pesticide, the producer/registrant, hazard and precautionary statements, and directions for use. 40 C.F.R. §156. The EPA must approve all language proposed for the label, including any proposed language that differs from standard label language. Id.

FIFRA prohibits states from imposing any pesticide labeling requirements “in addition to or different from those” FIFRA requires and preempts state laws imposing such requirements. 7 U.S.C. § 136v. Whether state labeling requirements constitute such “additional” or “different” requirements subject to FIFRA preemption remains a highly contested issue. See Carson v. Monsanto Co., 51 F.4^th 1358 (11th Cir. 2023); see Hardeman v. Monsanto Co., 997 F.3d 941 (9th Cir. 2021).

Prior Rulings

Monsanto has faced litigation nationwide for several years concerning its pesticide product, Roundup, containing the active ingredient glyphosate. Id. Plaintiffs in many of these cases allege that Monsanto failed to include cancer warnings on the product’s label in violation of certain state laws requiring manufacturers to include label warnings on products that may be dangerous or cause certain health risks. Id.

In 2021, the Ninth Circuit held that FIFRA does not expressly preempt California’s common law requirement for manufacturers to provide warnings of any known or knowable health risks associated with their products because California’s requirement is “‘equivalent’ to and ‘fully consistent with’ FIFRA.” Hardeman, 997 F.3d at 958. Additionally, the Ninth Circuit held that FIFRA does not impliedly preempt California’s common law duty to warn because Monsanto could comply with both FIFRA and California law by amending Roundup’s label, with or possibly without prior EPA approval, to include a cancer warning. Id. at 959-60.

The Eleventh Circuit also held that FIFRA does not preempt Georgia’s state law requiring manufacturers to provide warnings if their products are dangerous or could create a dangerous condition. Carson, 51 F.4^th at 1363. The Eleventh Circuit held that FIFRA does not preempt Georgia’s requirement because, among other reasons, neither FIFRA nor EPA regulations are “sufficiently formal to carry with it the force of law” and Georgia’s law, “if anything, imposes less of a duty on Monsanto than the FIFRA statute.” Id. at 1363-64.

The Third Circuit’s Opinion

In Schaffner v. Monsanto, plaintiffs allege that Monsanto’s failure to provide a cancer warning on Roundup violated Pennsylvania law. Schaffner v. Monsanto Co., No. 22-3075, at 3. Similar to the California and Georgia laws, Pennsylvania law requires manufacturers to include warnings regarding a product’s inherent dangers. After the trial court entered judgement against Monsanto on its preemption defense to a failure to warn claim, Monsanto argued on appeal that Pennsylvania’s law could not require a cancer warning because the EPA did not require such a warning and to include one on the label would render the product mislabeled under FIFRA. Monsanto contended that FIFRA preempts such state laws if they impose requirements different from FIFRA.

The Third Circuit concluded that regulations implementing FIFRA require health warnings on pesticide labels to conform to the EPA-approved label and prohibit modification. Schaffner, No. 22-3075 at 3. Because the EPA approved Roundup’s label, which did not contain a cancer warning, and because a violation of Pennsylvania’s law would not also be a violation of FIFRA, the Third Circuit held that Pennsylvania’s requirement is “different” from those under FIFRA and is thus preempted. Id. at 3, 66-68.

The decision in Schaffner creates a circuit split in light of the prior decisions in the Ninth Circuit and Eleventh Circuit. If the Third Circuit’s decision stands following any rehearing, it seems likely that Monsanto will ask the U.S. Supreme Court to take up the FIFRA preemption issue.

Schaffner v. Monsanto highlights the ongoing issue of whether, and to what extent, FIFRA preempts state-law labeling requirements for pesticide products that impose warning obligations different from those imposed by the EPA. For more information regarding FIFRA and the EPA’s pesticide regulations, contact a member of Taft’s Environmental group.