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R. Dylan Smith

Keywords

pesticides, forever chemicals, Glyphosate, Monsanto, Roundup, circuit split, Federal Insecticide Fungicide and Rodenticide Act, FIFRA

Document Type

Article

Abstract

The American public is becoming increasingly concerned about pesticides. From “forever chemicals” to environmental justice concerns, public awareness of pesticide issues is only becoming more prevalent. However, one pesticide has seized public attention in a significant way. Glyphosate, the active ingredient in Monsanto’s “Roundup” and other commercial pesticides has been the subject of heated debate in federal courtrooms across the nation. The rising controversy over glyphosate has even led some jurisdictions to attempt to ban or restrict the use of the product altogether.

While the scientific studies and legal definitions about glyphosate and its cancer link are inconsistent, a reasonable consumer may be frightened that the pesticide in their food is harmful and can cause cancer. In fact, so many people have become frightened about glyphosate exposure that thousands of plaintiffs across the country have brought state law failure-to-warn claims against Bayer based on their glyphosate exposure. Three of these cases have taken on paramount importance because they have created a circuit split based on whether or not these claims are expressly preempted by the Federal Insecticide Fungicide and Rodenticide Act.

This article will address the legal background of the circuit split, what the individual cases held, and why the Supreme Court should affirm the rulings of the Ninth and Eleventh Circuits. Because the Third Circuit failed to properly apply FIFRA’s statutory scheme and created concerning precedent for all express preemption cases, when the Supreme Court takes up the issue to resolve the split, it should overturn the Third Circuit’s decision and hold that FIFRA does not expressly preempt these state law failure-to-warn claims.

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