Bayer Makes Case on Roundup Labels

LINCOLN, Neb. (DTN) -- Seeking to end Roundup cancer claims across the country, Bayer argued in a brief filed in a federal appeals court this week that federal law pre-empts state laws when determining whether product-warning labels are necessary.

The U.S. Court of Appeals for the 11th Circuit has agreed to an en-banc hearing on a case involving Georgia resident John Carson.

Carson alleged Bayer has the duty to provide warning labels of glyphosate-based Roundup's alleged cancer-causing properties under Georgia law.

Carson was diagnosed with a cancer called malignant fibrous histiocytoma in 2016, alleging in a lawsuit his use of Roundup for 30 years was to blame. An en-banc hearing is before all of the judges in the circuit.

On Dec. 19, 2022, the full 11th Circuit granted Bayer's en-banc petition and vacated a three-judge panel decision of the 11th circuit.

"According to the Environmental Protection Agency, glyphosate -- the world's most widely used herbicide -- does not cause cancer," Bayer said in a brief filed in the 11th Circuit on Wednesday.

"That is the formal conclusion of an expert agency exercising congressionally delegated authority. Plaintiff nonetheless maintains that a jury applying state law can hold Monsanto liable for failing to provide a cancer warning that EPA determined is not required -- indeed is prohibited -- under FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act). Congress enacted a pre-emption provision that bars this claim."

Bayer has argued the case should be dismissed because such a warning label would be inconsistent with the label approved by EPA.

The agency says it has found no cancer connection with Roundup.

Bayer contends it could not comply with both state and federal law at the same time. Oral arguments are scheduled for June in Atlanta.

The Carson case is notable because it is the second case now under consideration by a federal appeals court on pre-emption grounds.

The other case involves a similar claim made by Pennsylvania non-Hodgkin's lymphoma victim David Schaffner Jr. in the U.S. Court of Appeals for the Third Circuit in Philadelphia.

Bayer filed an appeal on the Schaffner case on Feb. 8, making the same arguments that a district court misinterpreted federal law on Roundup labels.

Bayer had reached settlements in both the Carson and Schaffner cases.

Bayer said in a statement to DTN it continues to stand behind its Roundup products, "as the weight of scientific evidence and the conclusions of expert regulators worldwide continue to support the safety of glyphosate-based herbicides and that they are not carcinogenic."

The company said if state laws required Roundup label warnings it would "deviate from Roundup's EPA-approved labeling, render the product misbranded, and require the company to make a label change that would be contrary to the consistent conclusions of EPA's scientific assessments for more than four decades."

Bayer said since EPA has exercised its statutory authority to "determine that a cancer warning would be false and misleading in violation of FIFRA, a state cannot demand that a company violate federal law by including one."

Several groups have filed amicus briefs in the 11th Circuit in support of federal pre-emption.

That includes CropLife America, U.S. Chamber of Commerce, PhRMA, Product Liability Advisory Council, Retail Litigation Center, Drexel Chemical Co., Washington Legal Foundation and Atlantic Legal Foundation.

Read more on DTN:

"Farm Groups Write POTUS in Roundup Case," https://www.dtnpf.com/…

"DOJ Urges Rejection of Roundup Petition," https://www.dtnpf.com/…

"Bayer Faces Civil Rights Roundup Suit," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

(c) Copyright 2023 DTN, LLC. All rights reserved.