Wednesday, July 20, 2016

Registration of a Pesticide Doesn't Mean It Might Not Be Misbranded

A couple of recent cases indicate that simply because a pesticide is registered doesn't mean that the pesticide might be misbranded.  Generally, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) provides that once the Environmental Protection Agency (EPA) registers a pesticide and approves its label, state label-based claims are preempted.  However, that doesn't mean that the pesticide might be mislabeled.  In one recent case, the court (among other things) determined that the plaintiffs’ “warning-based” claims couched in negligence and strict liability failure to warn were not preempted  by FIFRA.  The court noted that state-law labeling claims are not preempted if they don’t impose any requirement that is different or beyond what federal law requires, and that the plaintiffs’ claims in the case were consistent with FIFRA’s labeling requirements.  That was the case, the court noted, because the plaintiffs’ claim was that the defendant’s existing label (the one used from 1995-2004) was misbranded in that it mispresented the safety of the pesticide and was an inadequate warning.  The case is Sheppard v. Monsanto Co., NO. 16-00043 JMS-RLP, 2016 U.S. Dist. LEXIS 84348 (D. Haw. Jun. 29, 2016).

In a California case decided a few days later, the plaintiff claimed that she that she developed cancer as a result of the use of the defendant’s pesticide glyphosate (commonly known as “Roundup”) for agricultural and non-agricultural purposes. She sued the defendant on the basis that the defendant failed to warn of the “carcinogenic nature of glyphosate” and was injured as a result. The plaintiff also sued under theories of strict liability, negligence and breach of implied and express warranties. The EPA had, before plaintiff’s use of pesticide, approved the product and the product label and had found that glyphosate is not carcinogenic to humans. The defendant claimed that the plaintiff’s claims were preempted by FIFRA. However, the court determined that a registered pesticide can still be found to be misbranded and in violation of FIFRA.   Misbranding, the court pointed out, means that the label contains insufficient directions, warnings or cautionary statements to be “adequate to protect health.”   It wasn't enough that the EPA  had "unoficially" determined that glyphosate was not carcinogenic.  Such determination did not involve any final action of the EPA that had the force of law addressing the issue of misbranding.  As such, the court determined, because FIFRA does not deem a registration of a pesticide to be conclusive as to whether a pesticide is misbranded (7 U.S.C. §136(a)(f)(2)), and because the defendant did not provide sufficient evidence to establish that glyphosate was not misbranded, state requirements that a pesticide not be misbranded were not preempted by FIFRA.  The case is Mendoza v. Monsanto Company, No. 1:16-cv-00406-DAD-SMS, 2016 U.S. Dist. LEXIS 89003 (E.D. Cal. Jul. 8, 2016).

Civil Liabilities, Environmental Law | Permalink


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