The U.S. Supreme Court invited the Solicitor General of the United States to express the government’s views on Monsanto’s appeal of a product-liability verdict. The Solicitor General’s brief in Monsanto v. Hardeman counseled against review, but in doing so the government unwittingly gave the Court a multitude of reasons to hear the appeal.
Hardeman is one of thousands of lawsuits individuals have filed against Monsanto alleging that the company violated California law by failing to warn that the active ingredient in its Roundup® pesticide, glyphosate, can cause cancer.
In its motions to dismiss and for summary judgment, Monsanto argued that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted Hardeman’s state-law claims.
The district court rejected those arguments, and, based on scientific evidence of the cancer-causing nature of glyphosate the court itself labeled “borderline” at best, the jury found Monsanto liable for over $80 million in damages.
If the Hardeman jury verdict stands, Monsanto would need to add a cancer warning to the Roundup® label. That’s something the Environmental Protection Agency (EPA) has never required for a glyphosate-based pesticide’s label since the agency approved glyphosate in 1972.
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If uniform labeling ceases to be federal policy, preemption will no longer protect pesticide manufacturers from frivolous failure-to-warn claims based on junk science. Faced with the costs of distributing pesticides with potentially fifty different labels, not to mention exposure to billions of dollars in damage awards and legal fees, companies may decide the risks outweigh the rewards. A reduction in pesticide production and innovation will mean fewer effective pesticides. And fewer pesticides mean less, and more expensive, food.
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For that reason, and because of that policy’s threat to food security and science-based policy making, the justices should accept certiorari in Monsanto v. Hardeman and ultimately reverse the Ninth Circuit’s decision.