The United States Court of Appeals for the Third Circuit, in Schaffner v. Monsanto, No. 22-3075 (3^rd Cir. 2024), recently held that a state-law duty to warn claim was expressly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). To reach the conclusion, the 3^rd Circuit diverged from the 9^th and 11^th Circuits, thus creating a split between circuits and providing an opportunity for the United States Supreme Court to step in and make a definitive ruling on FIFRA preemption.  If the Supreme Court were to adopt the 3^rd Circuit’s reasoning, FIFRA would preempt any state-law duty to warn claims that were inconsistent with EPA’s approved label for products containing glyphosate.

The circuit split centers on the Supreme Court’s “Parallel Requirements Test” set out in Bates v. Dow Agrosciences, 544 U.S. 431 (2005). The Parallel Requirements Test requires lower courts to identify the relevant state and federal labeling requirements then compare the two to determine whether they are equivalent. The labeling requirement in FIFRA is found at Section 136v(b) and says that states should, in essence, require the same packaging and labeling as FIFRA. Both the 9^th and 11^th Circuits determined that the only federal labeling requirement relevant to this analysis was FIFRA’s statutory definition of misbranding, which provides that a pesticide is misbranded if its label omits a warning necessary for safe use. The courts did not however, identify any specific warning that is required to be included or omitted. The 9^th and 11^th Circuit decisions came forward in Hardeman v. Monsanto Co. (Hardeman II), 997 F.3d 941 (9th Cir. 2021) and Carson v. Monsanto Co. (Carson IV), 92 F.4th 980 (11th Cir. 2024) respectively. In contrast, the 3^rd Circuit determined that FIFRA’s labeling requirements do not stop at the broad definition of misbranding, but also include the more specific regulatory requirement that a pesticide’s label must, and only, contain the specific contents included on its preapproved label, including the precautionary statements.

Under the 3^rd Circuit standard, because the alleged violation of state-law (the omission of the proposed cancer warning) did not violate federal labeling requirements, the state and federal requirements are not equivalent and the parallel-requirements test is not satisfied. Utilizing this reasoning, the 3rd Circuit concluded that Schaffner’s claim for failure to warn was preempted under section 136v(b).  The Supreme Court has not yet taken up review of this circuit split. However, the resolution is imminent as the different interpretations will have profound implications on FIFRA litigation nationwide.