Eleventh Circuit En Banc Elaborates upon Express Preemption Analysis in Recent FIFRA Decision
In a recent en banc decision out of the Eleventh Circuit, the Court found that the panel had used an improper standard in holding that a state law failure to warn cause of action was not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and after clarifying the appropriate inquiry, sent the matter back to the panel for further consideration. In the case, the plaintiff averred that after years of using the popular weedkiller, Roundup, he developed cancer, which he claims Monsanto failed to adequately warn consumers was a risk of using that product. Carson v. Monsanto Company, 72 F.4th 1261 (11th Cir. 2023). Monsanto responded that plaintiff’s Georgia state law claims were expressly or impliedly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) because the United States Environmental Protection Agency (“EPA”) approved a label for Roundup which lacked a cancer warning, and classified Roundup’s principal ingredient, glyphosate, as “not likely to be carcinogenic.”
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