Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 1 of 17 Page ID #:1346
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. CV 19-6780 FMO (ASx)
`
`ORDER RE: MOTION TO DISMISS
`
`)))))))))))
`
`JAMES WEEKS, individually and on
`behalf of all others similarly situated,
`Plaintiff,
`
`v.
`HOME DEPOT U.S.A., INC.,
`Defendant.
`
`Having reviewed and considered the briefing filed with respect to defendant Home Depot
`U.S.A., Inc.’s (“defendant”) Motion to Dismiss First Amended Class Action Complaint (“FAC”) (Dkt.
`38, “Motion”), the court finds that oral argument is not necessary to resolve the Motion, see Fed.
`R. Civ. P. 78(b); Local Rule 7-15; Willis v. Pac. Mar. Ass’n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001),
`and concludes as follows.
`
`BACKGROUND
`“Roundup is sold at Home Depot retail locations throughout the United States, including
`California, and on Home Depot’s website.” (Dkt. 18, FAC at ¶ 16). Plaintiff James Weeks
`(“plaintiff”) “routinely purchased a Roundup Ready-to-Use Weed & Grass Killer III product . . . from
`at least one Home Depot store located in Ventura County, California.” (Id. at ¶¶ 8 & 60). Plaintiff
`alleges that defendant “did not provide [him] with any information regarding the carcinogenic
`nature of Roundup[,]” (id. at ¶ 61), and that he would not have purchased Roundup if he had
`known of its alleged carcinogenic properties. (See id. at ¶ 63). According to plaintiff, defendant
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 2 of 17 Page ID #:1347
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`“could have, but failed to provide [information about Roundup’s alleged carcinogenicity] by, for
`example, displaying it on the shelves where Roundup was sold (or, for some consumers, on the
`product pages online).” (Id. at ¶ 62).
`“Although Defendant is not involved in the manufacture and design of the Roundup
`products, Defendant is responsible for passing Roundup down the line to consumers by making
`it available for purchase, and thus plays an integral role in placing Roundup into the stream of
`commerce.” (Dkt. 18, FAC at ¶ 57). Plaintiff alleges that defendant “was and is aware of the
`present and substantial danger to consumers while using Roundup in an intended and reasonably
`foreseeable way and has not alerted consumers of its potential health risks.” (Id. at ¶ 59). In
`support of this claim, plaintiff points to: (1) the International Agency for Research on Cancer’s
`(“IARC”) conclusion that glyphosate is “probably carcinogenic to humans,” (id. at ¶ 22) (emphasis
`omitted); (2) the U.S. Environmental Protection Agency’s (“EPA”) 1985 memorandum classifying
`glyphosate as a “Category C oncogen[,”] i.e., a possible human carcinogen, (id. at ¶ 26) (internal
`quotation marks omitted); (3) Monsanto’s 1996 settlement of false advertising claims with the state
`of New York, (see id. at ¶ 30); (4) various studies on the effects of glyphosate, (see id. at ¶¶ 31-36
`& 38); (5) the decisions of several foreign governments to ban glyphosate, (see id. at ¶¶ 40-47);
`(6) three California jury verdicts finding Monsanto liable for failure to warn, (see id. at ¶¶ 49-51);
`and (7) the decision by the California Office of Environmental Health Hazard Assessment
`(“OEHHA”) to list glyphosate as a chemical known to cause cancer, pursuant to the Safe Drinking
`Water and Toxic Enforcement Act of 1986 (“Proposition 65"). (See id. at ¶ 52).
`On November 22, 2019, plaintiff filed the operative FAC, in which he alleged a single cause
`of action pursuant to California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code. §§
`17200, et seq. (See Dkt. 18, FAC at ¶¶ 78-90). Plaintiff “brings this claim under the ‘unfair’ prong
`of” the UCL. (Id. at ¶ 79).
`
`LEGAL STANDARD
`A motion to dismiss for failure to state a claim should be granted if plaintiff fails to proffer
`“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly
`(Twombly), 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007); Ashcroft v. Iqbal (Iqbal), 556 U.S.
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 3 of 17 Page ID #:1348
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`662, 678, 129 S.Ct. 1937, 1949 (2009); Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). “A
`claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
`the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
`at 678, 129 S.Ct. at 1949; Cook, 637 F.3d at 1004; Caviness v. Horizon Cmty. Learning Ctr., Inc.,
`590 F.3d 806, 812 (9th Cir. 2010). Although the plaintiff must provide “more than labels and
`conclusions, and a formulaic recitation of the elements of a cause of action will not do,” Twombly,
`550 U.S. at 555, 127 S.Ct. at 1965; Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; see also Cholla
`Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (“[T]he court is not required to accept
`legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be
`drawn from the facts alleged. Nor is the court required to accept as true allegations that are
`merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”) (citations and
`internal quotation marks omitted), “[s]pecific facts are not necessary; the [complaint] need only
`give the defendant[s] fair notice of what the . . . claim is and the grounds upon which it rests.”
`Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200 (2007) (per curiam) (citations and
`internal quotation marks omitted); Twombly, 550 U.S. at 555, 127 S.Ct. at 1964.
`In considering whether to dismiss a complaint, the court must accept the allegations of the
`complaint as true, Erickson, 551 U.S. at 93-94, 127 S.Ct. at 2200; Albright v. Oliver, 510 U.S. 266,
`267, 114 S.Ct. 807, 810 (1994) (plurality opinion), construe the pleading in the light most favorable
`to the pleading party, and resolve all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S.
`411, 421, 89 S.Ct. 1843, 1849 (1969); Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005).
`Dismissal for failure to state a claim can be warranted based on either a lack of a cognizable legal
`theory or the absence of factual support for a cognizable legal theory. See Mendiondo v.
`Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint may also be
`dismissed for failure to state a claim if it discloses some fact or complete defense that will
`necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).
`DISCUSSION
`Defendant argues that the court should dismiss plaintiff’s UCL claim for several reasons.
`(See Dkt. 38-1, Memorandum of Points and Authorities in Support of Home Depot U.S.A., Inc.’s
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 4 of 17 Page ID #:1349
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`Motion to Dismiss the [FAC] (“Memo.”) at 1-2). The court addresses defendant’s contentions in
`turn.
`I.
`
`PREEMPTION.
`Defendant first contends that plaintiff’s UCL claim is preempted by the Federal Insecticide,
`Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136, et seq. (See Dkt. 38-1, Memo. at 7-
`12). FIFRA, originally enacted in 1947, was amended in 1972 to convert it “from a labeling law
`into a comprehensive regulatory statute.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104
`S.Ct. 2862, 2867 (1984). “As amended, FIFRA regulate[s] the use, as well as the sale and
`labeling, of pesticides; regulate[s] pesticides produced and sold in both intrastate and interstate
`commerce; [and] provide[s] for review, cancellation, and suspension of registration[.]” Id. at 991-
`92, 104 S.Ct. at 2867.
` “The Supremacy Clause of the Constitution provides that any state law conflicting with
`federal law is preempted by the federal law and is without effect.” Nathan Kimmel, Inc. v.
`DowElanco, 275 F.3d 1199, 1203 (9th Cir. 2002) (citing U.S. Const. art. VI, cl. 2). Courts look to
`congressional intent to determine whether state law is preempted by a federal statute. See id.
`“[B]ecause the States are independent sovereigns in our federal system, [courts] have long
`presumed that Congress does not cavalierly pre-empt state-law causes of action.” Medtronic, Inc.
`v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 2250 (1996). “Federal preemption occurs when: (1)
`Congress enacts a statute that explicitly pre-empts state law; (2) state law actually conflicts with
`federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to
`conclude that Congress left no room for state regulation in that field.” Chae v. SLM Corp., 593
`F.3d 936, 941 (9th Cir. 2010) (internal quotation marks omitted). Here, defendant argues that both
`express and conflict preemption apply. (See Dkt. 38-1, Memo. at 7-13).
`A.
`Express Preemption.
`FIFRA contains an express preemption provision which provides:
`(a) In general
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 5 of 17 Page ID #:1350
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`A State may regulate the sale or use of any federally registered pesticide or
`device in the State, but only if and to the extent the regulation does not
`permit any sale or use prohibited by this subchapter.
`(b) Uniformity
`Such State shall not impose or continue in effect any requirements for
`labeling or packaging in addition to or different from those required under this
`subchapter.
`7 U.S.C. §§ 136v(a)-(b).
`“For a particular state rule to be pre-empted [by FIFRA], it must satisfy two conditions.”
`Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 444, 125 S.Ct. 1788, 1798 (2005). “First, it must
`be a requirement for labeling and packaging; rules governing the design of a product, for example,
`are not preempted.” Id. (emphasis and internal quotation marks omitted). “Second, it must
`impose a labeling or packaging requirement that is in addition to or different from those required
`under [FIFRA].” Id. (emphasis and internal quotation marks omitted). “[A] state-law labeling
`requirement is not pre-empted by § 136v(b) if it is equivalent to, and fully consistent with, FIFRA’s
`misbranding provisions.” Id. at 447, 125 S.Ct. at 1800. In addition, FIFRA registration does not
`provide “a defense for the commission of any offense under th[e statute].” 7 U.S.C. § 136a(f)(2).
`In Bates, the Supreme Court made clear that FIFRA allowed “[p]rivate remedies that
`enforce [FIFRA’s] misbranding requirements[.]” 544 U.S. at 451, 125 S.Ct. at 1802. For example,
`the Bates Court allowed state-law failure-to-warn claims to go forward as long as those claims
`were consistent with FIFRA, id. at 452-53, 125 S.Ct. at 1803, even though the EPA had approved
`the insecticide label at issue. Id. at 434-35, 125 S.Ct. at 1793. Bates thus “established that mere
`inconsistency between the duty imposed by state law and the content of a manufacturer’s labeling
`approved by the EPA at registration did not necessarily mean that the state law duty was
`preempted.” Hardeman v. Monsanto Co., 216 F.Supp.3d 1037, 1038 (N.D. Cal. 2016) (internal
`quotation marks omitted).
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 6 of 17 Page ID #:1351
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`Requirement for Labeling and Packaging.
`1.
`Plaintiff alleges that defendant engaged in an “unfair business practice[]” by selling
`Roundup without “providing consumers with any additional information on store shelves or at the
`point of sale about the products’ potential health risks.” (Dkt. 18, FAC at ¶¶ 1 & 3). FIFRA defines
`“label” as “the written, printed, or graphic matter on, or attached to, the pesticide or device or any
`of its containers or wrappers.” 7 U.S.C. § 136(p)(1). It also defines “labeling” as “all labels and
`all other written, printed, or graphic matter . . . accompanying the pesticide or device at any time;
`or to which reference is made on the label or in literature accompanying the pesticide or device[.]”
`7 U.S.C. § 136(p)(2).
`The parties each point to different pre-Bates Ninth Circuit cases in arguing whether point-of-
`sale warnings constitute labeling and packaging, such that FIFRA’s preemption provision applies.
`(See Dkt. 45, Plaintiff’s Opposition to Defendant Home Depot U.S.A. Inc.’s Motion to Dismiss the
`[FAC] (“Opp.”) at 7-9); (Dkt. 46, Reply Memorandum in Support of Home Depot U.S.A., Inc.’s
`Motion to Dismiss the [FAC] (“Reply”) at 2-5). Defendant cites Taylor AG Industries v. Pure-Gro,
`54 F.3d 555 (9th Cir. 1995), for the proposition that the “Ninth Circuit rejected the argument that
`FIFRA does not preempt point-of-sale warnings[.]” (Dkt. 46, Reply at 3) (internal quotation marks
`omitted). In Taylor, the Ninth Circuit held that the “claim for inadequate point-of-sale warnings
`[wa]s preempted [by FIFRA] because [the] claim [wa]s premised ultimately upon the inadequacy
`of the product label.” 54 F.3d at 561. However, this holding is difficult, if not impossible, to square
`with the Supreme Court’s subsequent determination that state-law tort claims may proceed despite
`the fact that the EPA had, pursuant to FIFRA, approved the label at issue. See Bates, 434-35 &
`452-53, 125 S.Ct. at 1793 & 1803. Bates appears to contradict the notion that a claim based on
`an inadequate point-of-sale warning can be preempted solely on the ground that it “is premised
`ultimately on the inadequacy of the product label.” Taylor, 54 F.3d at 561.
`Plaintiff points to the Ninth Circuit’s decision in Chemical Specialties Mfrs. Ass’n, Inc. v.
`Allenby, 958 F.2d 941 (9th Cir. 1992) (“Allenby”) to support its argument that point-of-sale
`warnings are not preempted by FIFRA. (See Dkt. 45, Opp. at 8). In Allenby, the Ninth Circuit
`concluded that point-of-sale warnings required by Proposition 65 “clearly are not ‘labels’ within the
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 7 of 17 Page ID #:1352
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`meaning of” FIFRA. Id. at 946. The court also found that point-of-sale warnings did not constitute
`“labeling” under FIFRA because “FIFRA’s definition of labeling cannot encompass every type of
`written material accompanying the pesticide at any time.” Id. “If this were true, then price stickers
`affixed to shelves, sheets indicating that a product is on sale, and even the logo on the
`exterminator’s hat would all constitute impermissible labeling.” Id. The court finds the reasoning
`in Allenby persuasive and consistent with the Bates decision. Accordingly, the court concludes
`that point-of-sale warnings do not constitute a labeling or packaging requirement within the
`meaning of FIFRA.1
`In Addition to or Different from FIFRA Requirements.
`2.
`So long as the requirement plaintiff seeks to enforce under state law is consistent with
`FIFRA, plaintiff’s claim is not preempted. See Bates, 544 U.S. at 448, 125 S.Ct. at 1800 (State
`tort claims which “enforce a federal requirement [do] not impose a requirement that is different
`from or in addition to, requirements under federal law. To be sure, the threat of a damages
`remedy will give manufacturers an additional cause to comply, but the requirements imposed on
`them under state and federal law do not differ.”) (internal quotation marks omitted); Hardeman,
`216 F.Supp.3d at 1038 (“To the extent [plaintiff’s] failure-to-warn claims attack Roundup’s product
`labeling, they are consistent with FIFRA.”). FIFRA requires an herbicide label to “contain a
`warning or caution statement which may be necessary and if complied with . . . is adequate to
`protect health and the environment[.]” 7 U.S.C. § 136(q)(1)(G). Here, plaintiff contends that the
`requested point-of-sale warning regarding Roundup’s alleged carcinogenicity is consistent with
`FIFRA’s prohibition on “misbranding.” (Dkt. 45, Opp. at 9) (“Plaintiff’s UCL claim, which is based
`on Home Depot’s decision to knowingly sell a product likely to cause cancer without informing
`consumers of the health risks parallels requirements imposed by FIFRA’s misbranding
`
` 1 In a footnote, the Ninth Circuit in Taylor distinguished Allenby by noting that it “merely held
`that non-label warnings were not preempted by FIFRA and never addressed the issue of whether
`common law damages could be imposed for the absence of these non-label warnings.” Taylor,
`54 F.3d at 561 n. 2. Plaintiff in this case does not seek common law damages for the absence
`of a point-of-sale warning; rather, he seeks injunctive relief and restitution. (Dkt. 18, FAC at p. 19).
`The Taylor court’s basis for distinguishing Allenby is therefore not applicable here.
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 8 of 17 Page ID #:1353
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`prohibitions.”) (citation omitted). Defendant, on the other hand, argues that the inclusion of a
`point-of-sale warning of Roundup’s carcinogenicity would constitute misbranding. (See Dkt. 38-1,
`Memo. at 9-12). In support of its argument, defendant cites an August 7, 2019, letter from the
`EPA to “registrants” explaining the EPA’s view that glyphosate, the active ingredient in Roundup,
`is not carcinogenic. (See id. at 9); (Letter from Michael L. Goodis, Director, Registration Division,
`Office of Pesticide Programs (Aug. 7, 2019) (“2019 EPA Letter”)). Defendant asks the court to
`take judicial notice of the 2019 EPA Letter. (See Dkt. 39, RJN). Defendant claims that it is “not
`asking the Court . . . to determine the veracity of [the statements in the 2019 EPA Letter], but is
`simply requesting the Court to take judicial notice of the fact that EPA has publicly announced its
`position regarding cancer warnings on glyphosate products via these statements.” (Dkt. 38-1,
`Memo. at 3, n. 2).
`Facts subject to judicial notice are those which are either “generally known within the trial
`court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose
`accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2); see Lee v. City of Los
`Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (“A court may take judicial notice of matters of public
`record without converting a motion to dismiss into a motion for summary judgment.”) (internal
`quotation marks omitted). But “[j]ust because [a] document itself is susceptible to judicial notice
`does not mean that every assertion of fact within that document is judicially noticeable for its truth.”
`Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018), cert. denied, 139 S.Ct.
`2615 (2019). Here, defendant’s preemption arguments are based on the court making a “veracity”
`finding with respect to the EPA’s statements. (See, e.g., Dkt. 38-1, Memo. at 10) (“[W]hen
`registering the glyphosate products at issue here, EPA explicitly addressed the very labeling
`question Plaintiff raises, stated its position that the absence of a cancer warning does not render
`the products misbranded, and required the use of a label that has no cancer warning.”). The fact
`that defendant references the EPA’s statements in the 2019 EPA Letter as the EPA’s “position”
`as opposed to its findings, conclusions, etc. does not change the fact that defendant is asking the
`court to rely on the EPA’s factual “determination that glyphosate is not a carcinogen[.]” (See id.
`at 11). Under the circumstances, the court is unwilling to grant judicial notice to the factual
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 9 of 17 Page ID #:1354
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`assertions contained in the 2019 EPA Letter, especially given that, as discussed below, the 2019
`EPA Letter does not have the force of law.
`However, even assuming the court granted judicial notice to the factual assertions in the
`2019 EPA Letter, plaintiff’s claim would not be preempted. In defendant’s view, a point-of-sale
`warning about Roundup would be inconsistent with FIFRA because the EPA stated in a letter that
`glyphosate is not carcinogenic. (See Dkt. 38-1, Memo. at 9-10) (“A state-law requirement to
`include a warning that deviates from the EPA-approved label – indeed, a warning that EPA has
`expressly said it would not allow – is ‘in addition to’ and ‘different from’ the labeling requirement
`imposed by EPA under FIFRA.”). While the 2019 EPA letter indicates that the EPA would not
`likely approve a proposal to include a cancer warning on the Roundup label itself, the question
`here is whether the proposed state law requirement is “in addition to” or “different from” FIFRA,
`not whether it diverges from a pronouncement of the EPA. See Hardeman, 216 F.Supp.3d at
`1038 (“And the mere fact that the EPA has approved a product label does not prevent a jury from
`finding that the same label violates FIFRA.”).
`“Because the Supremacy Clause privileges only ‘[l]aws of the United States,’ an agency
`pronouncement must have the force and effect of federal law to have preemptive force.” Reid v.
`Johnson & Johnson, 780 F.3d 952, 964 (9th Cir. 2015). The Ninth Circuit has “decline[d] to afford
`preemptive effect to agency actions that do not carry the force of law under [United States v. Mead
`Corp., 533 U.S. 218, 121 S.Ct. 2164 (2001)] and its progeny.” Id. In Mead, the Supreme Court
`determined that certain agency actions like “policy statements, agency manuals, and enforcement
`guidelines” should not receive Chevron deference. Mead, 533 U.S. at 234, 121 S.Ct. at 2175.
`In Reid, the Ninth Circuit applied Mead in the context of determining whether agency action by the
`FDA merits preemptive force; it concluded that the agency letter explaining the FDA’s enforcement
`intentions lacked preemptive force. See Reid, 780 F.3d at 963-64. The Ninth Circuit noted that
`“[c]reation of federal law should demand at least the same formality for purposes of preemption
`as it does for purposes of Chevron deference.” Id. at 964 (footnote omitted). Here, as in Reid,
`the 2019 EPA Letter lacks preemptive force, and is insufficient to establish that plaintiff’s request
`for a point-of-sale warning about Roundup is inconsistent with FIFRA.
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 10 of 17 Page ID #:1355
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`Defendant also argues that the EPA’s approval of a Roundup label that did not include a
`cancer warning shows that state law requiring a cancer warning at point-of-sale would be “in
`addition to” or “different from” the requirements of FIFRA. (See Dkt. 38-1, Memo. at 10) (“[W]hen
`registering the glyphosate products at issue here, EPA . . . required the use of a label that has no
`cancer warning.”). But “the mere fact that the EPA has approved a product label does not prevent
`a jury from finding that the same label violates FIFRA.” Hardeman, 216 F.Supp.3d at 1038.
`Indeed, FIFRA states that “[i]n no event shall registration of an article be construed as a defense
`for the commission of any offense under” FIFRA. 7 U.S.C. § 136a(f)(2). Moreover, there is no
`indication that the EPA’s labeling decision has the force of law. Thus, there is no indication the
`label has preemptive effect. See Mead, 533 U.S. at 234, 121 S.Ct. at 2175 (“In sum, classification
`rulings are best treated like interpretations contained in policy statements, agency manuals, and
`enforcement guidelines. They are beyond the Chevron pale.”) (internal quotation marks and
`citation omitted). Though EPA rulemaking would “‘necessarily affect the scope of preemption
`under § 136v(b),’ the EPA has promulgated ‘relatively few regulations that refine or elaborate upon
`FIFRA’s broadly phrased misbranding standards.’” Hardeman, 216 F.Supp.3d at 1039 (quoting
`Bates, 544 U.S. at 453 n. 28, 125 S.Ct. at 1804 n. 28).
`In light of the foregoing and the general presumption against preemption, see Wyeth v.
`Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 1194-95 (2009) (“In all pre-emption cases, . . . we start
`with the assumption that the historic police powers of the States were not to be superseded by the
`Federal Act unless that was the clear and manifest purpose of Congress.”) (internal quotation
`marks and alterations omitted), the court concludes that, even assuming the court takes judicial
`notice of the 2019 EPA letter, defendant has not met its burden to show that FIFRA expressly
`preempts plaintiff’s UCL claim.
`B.
`Conflict Preemption.
`State law conflicts with federal law where “it is impossible for a private party to comply with
`both state and federal requirements, or where state law stands as an obstacle to the
`accomplishment and execution” of a federal mandate. Spreitsma v. Mercury Marine, 537 U.S. 51,
`64, 123 S.Ct. 518, 527 (2002) (citation and internal quotation marks omitted). Defendant asserts
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 11 of 17 Page ID #:1356
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`that the doctrine of impossibility preemption bars plaintiff’s claim. (See Dkt. 38-1, Memo. at 12-
`13). In support, defendant points to two Supreme Court cases – Wyeth and Merck Sharp &
`Dohme Corp. v. Albrecht, 139 S.Ct. 1668, 1679 (2019) – on impossibility preemption in the context
`of the federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301, et seq. (Id. at 12). In
`Wyeth, the Supreme Court stated that, “absent clear evidence that the FDA would not have
`approved a change to [a manufacturer’s] label, . . . it [is] not impossible for [a manufacturer] to
`comply with both federal and state requirements.” 555 U.S. at 571, 129 S.Ct. at 1198. The
`Supreme Court defined “clear evidence” as evidence “that shows the court that the drug
`manufacturer fully informed the FDA of the justifications for the warning required by state law and
`that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change
`to the drug’s label to include that warning.” Merck Sharp, 139 S.Ct. at 1672. Defendant argues
`that this test is satisfied. (See Dkt. 38-1, Memo. at 12-13). First, referencing the August 7, 2019,
`EPA letter, defendant asserts that the “EPA is ‘fully informed’ about the supposed evidence that
`glyphosate is carcinogenic.” (Id. at 13). Second, defendant claims that the “EPA’s finding that
`glyphosate poses no cancer risk to humans is ‘clear evidence’ that EPA would not approve a
`request to add a cancer warning.” (Id.).
`“Impossibility preemption is a demanding defense[,]” Wyeth, 555 U.S. at 573, 129 S.Ct. at
`1199, and defendant’s argument on this score is unpersuasive. Defendant does not explain why
`the same impossibility preemption principles the Supreme Court applied in the context of the
`FDCA also apply in the context of FIFRA. (See, generally, Dkt. 38-1, Memo. at 12-13). Indeed,
`defendant’s impossibility “preemption theory is difficult – if not impossible – to square with” Bates.
`See In re Roundup Prods. Liab. Litig., 364 F.Supp.3d 1085, 1088 (N.D. Cal. 2019) (finding that
`Bates foreclosed the defendant’s implied preemption theory because the Bates court, “in reversing
`the lower court's conclusion that the plaintiffs' claims had been preempted, . . . necessarily
`rejected the possibility of implied preemption.”). FIFRA allows states to regulate or ban products
`that have been federally approved. 7 U.S.C. §136v(a); Bates, 544 U.S. at 446, 125 S.Ct. at 1799
`(noting that “a state agency may ban the sale of a pesticide if it finds, for instance, that one of the
`pesticide’s label-approved uses is unsafe”). By contrast, “nothing in the FDCA allows a state to
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 12 of 17 Page ID #:1357
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`ban a drug.” In re Roundup, 364 F.Supp.3d at 1088. This distinction is important because if
`California can stop defendant or manufacturers from selling Roundup entirely, then it seems
`inconsistent to conclude that the statute implicitly – but not expressly – preempts a state law
`requirement that stops short of banning the product. Relatedly, defendant’s argument for implied
`preemption is weakened by the fact that FIFRA’s express preemption provision does not foreclose
`plaintiff’s claim. See Bates, 544 U.S. at 459, 125 S.Ct. at 1807 (Thomas, J., concurring in part and
`dissenting in part) (noting that the majority decision “comports with th[e] Court’s increasing
`reluctance to expand federal statutes beyond their terms through doctrines of implied pre-
`emption”).
`II.
`DEFENDANT’S PARTICIPATION IN AND CONTROL OF THE ALLEGEDLY UNFAIR
`BUSINESS PRACTICE.
`Defendant next argues that plaintiff’s UCL claim fails because plaintiff has insufficiently
`alleged defendant’s participation in and control of the alleged unfair business practices. (See Dkt.
`38-1, Memo. at 13-14). To succeed on his UCL claim, plaintiff may show that defendant’s liability
`is due to its own “participation in the unlawful practices and unbridled control over the practices
`that are found to violate section 17200 or 17500.” Emery v. Visa Int’l Serv. Ass’n, 95 Cal.App.4th
`952, 960 (2002) (internal quotation marks omitted).
`Plaintiff argues that he does not seek to impose vicarious liability on defendant for the acts
`of the Roundup manufacturer, but rather direct liability on defendant “because it has known
`Roundup poses potential health risk[s] to consumers, yet continues selling it (without warning
`consumers on its store shelves, website or at the point of sale) and reaps handsome profits as a
`result of that activity.” (Dkt. 45, Opp. at 17). The parties’ dispute appears to be whether and
`under what circumstances a retailer can be held liable under the UCL for failure to warn regarding
`the products it sells. (See Dkt. 38-1, Memo. at 15-16) (“Plaintiff’s theory is contrary to the
`established rule that a retailer need not act as a ‘global policeman’ for the labeling of every product
`it sells, and cannot be liable simply for selling a product for which the plaintiff claims the labeling
`is deficient.”); (Dkt. 45, Opp. at 17) (“A retailer of a third party’s goods may be liable under the
`UCL, even where the retailer is not the originator of the unfair practices.”). The court will deny
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`Case 2:19-cv-06780-FMO-AS Document 65 Filed 09/18/20 Page 13 of 17 Page ID #:1358
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`defendant’s Motion as to this argument without prejudice to raising it at summary judgment.
`Plaintiff should be allowed to conduct discovery with respect to the scope and extent of
`defendant’s knowledge regarding the health risks to consumers posed by Roundup.
`III.
`PROPOSITION 65.
`Defendant argues that although “Plaintiff has styled his claim as a UCL claim, in substance
`it arises under Proposition 65, which governs claims involving warnings about chemicals with
`known cancer-causing properties.” (Dkt. 38-1, Memo. at 16). Defendant elaborates, “Plaintiff’s
`claim arises under Proposition 65 because he alleges that Home Depot is liable for not issuing a
`cancer warning for Roundup’s active ingredient (glyphosate).” (Id.); Cal. Health & Safety Code
`§ 25249.6 (“No person in the course of doing business shall knowingly and intentionally expose
`any individual to a chemical known to the state to cause cancer or reproductive toxicity without first
`giving clear and reasonable warning to such individual[.]”). According to defendant, plaintiff sought
`to avoid bringing his claim under Proposition 65 because a private plaintiff may only sue under the
`warning section of Proposition 65 after he has provided a 60-day notice of the alleged violation
`and a certificate of merit to the alleged violator, the California Attorney General, and the district
`attorney, city attorney, or prosecutor in each jurisdiction where the alleged violation occurred.2
`(See Dkt. 38-1, Memo. at 17-18); Cal. Health & Safety Code. § 25249.7(d)(1).
`Plaintiff argues that his UCL claim is independent of Proposition 65, (see Dkt. 45, Opp. at
`19-22), as it “does not arise under Proposition 65, nor does it seek to vindicate a right created by
`Proposition 65.” (Dkt. 18, FAC at ¶ 56). Plaintiff also frames his claim as attacking the Roundup
`formulation as a whole, rather than only glyphosate, as carcinogenic and harmful. (See Dkt. 45,
`
` 2