USCA11 Case: 21—10994
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`Date Filed: 05/05/2021
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`Page: 1 of 36
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
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`Appeal Number: 21-10994-E
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`JOHN D. CARSON, SR.
`Appellant/Plaintiff below
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`V.
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`MONSANTO COMPANY
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`Appellee/Defendant below
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`APPEAL FROM THE UNITED STATES DISTRICT COURT
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`FOR THE SOUTHERN DISTRICT OF GEORGIA
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`SAVANNAH DIVISION
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`USDC CASE NUMBER: 4:17-cv-00237-RSB—CLR
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`BRIEF OF APPELLANT
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`ASHLEIGH R. MADISON
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`SOUTHEAST LAW, LLC
`1703 ABERCORN STREET
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`SAVANNAH, GEORGIA 31401
`912-662-6612 (0)
`877-417-2943 (F)
`s0utheastlaw@gmail.com
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`ATTORNEY FOR APPELLANT
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`

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`USCA11 Case: 21—10994
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`Date Filed: 05/05/2021
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`Page: 2 of 36
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`Appeal Number: 21—10994-E
`John D. Carson, Sr. v. Monsanto Company
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`CERTIFICATE OF INTERESTED PERSONS
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`AND CORPORATE DISCLOSURE STATEMENT
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`The undersigned Counsel of Record for Plaintiff/Appellant John D. Carson,
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`Sr., in accordance with Rule 26.1 of the United States Court of Appeals, Eleventh
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`Circuit, certifies that the following is a full and complete list of all persons, firms,
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`associations, partnerships, and corporations, including subsidiaries, conglomerates,
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`affiliates, parent corporations, and other legal entities having an interest in the
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`outcome of this case:
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`Baker, Honorable R. Stan
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`Judge, US. District Court for
`The Southern District of Georgia
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`Boswell, Chase E.
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`Attorney for Appellee/Defendant
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`Calhoun, Martin C.
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`Attorney for Appellee/Defendant
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`Carson, John D., Sr.
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`Appellant/Plaintiff Below
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`Carson, John D., Jr.
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`Attorney for Appellant/Plaintiff
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`Carson, John D., Jr., PC.
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`Attorneys for Appellant/Plaintiff
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`Hollingsworth, Joe Gregory
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`Attorney for Appellee/Defendant
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`C-l of2
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`USCA11 Case: 21 -1 0994 Date Filed: 05/05/2021
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`Page: 3 of 36
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`Appeal Number: 21-10994—E
`John D. Carson, Sr. v. Monsanto Company
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`Hollingsworth LLP
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`Attorneys for Appellee/Defendant
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`Imbroscio, Michael X.
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`Attorney for Appellee/Defendant
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`Madison, Ashleigh R.
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`Attorney for Appellant/Plaintiff
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`Monsanto Company - MON
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`Appellant/Defendant
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`Southeast Law, LLC
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`Attorneys for Appellant/Plaintiff
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`This 5111 day of May, 2021.
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`/s/ Ashleigh R. Madison
`Ashleigh R. Madison
`Georgia Bar Number: 346027
`Attorney for Appellant
`Southeast Law, LLC
`1703 Abercorn Street
`
`Savannah, Georgia 31401
`912-622-6612 (0)
`877-417—2943 (F)
`southeastlaw@gmail.com
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`C-2 of 2
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`USCA11 Case: 21—10994
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`STATEMENT REGARDING ORAL ARGUMENT
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`Appellant does not request oral argument.
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`

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`USCA11 Case: 21-10994
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`Date Filed: 05/05/2021
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`Page: 5 of 36
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`TABLE OF CONTENTS
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`STATEMENT REGARDING ORAL ARGUMENT ................................. iv
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`TABLE OF CONTENTS .................................................................... v
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`TABLE OF AUTHORITIES ............................................................... vi
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`STATEMENT OF JURISDICTION ....................................................... 1
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`STATEMENT OF THE ISSUES PRESENTED FOR APPEAL ...................... 1
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`STATEMENT OF THE CASE ............................................................. 2
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`1.
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`Course of
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`Proceedings .............................................................. 2
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`11.
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`Statement of Facts ...................................................... 3
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`III.
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`Standard of Review .................................................... 6
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`SUMMARY OF THE ARGUMENT ....................................................... 6
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`ARGUMENT AND CITATION OF AUTHORITY ..................................... 7
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`CONLUSION ................................................................................ 25
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`CERTIFICATE OF COMPLIANCE ...................................................... 26
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`CERTIFICATE OF SERVICE ............................................................ 28
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`

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`USCA11 Case: 21—10994
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`TABLE OF AUTHORITIES
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`Federal Cases
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`Abdur-Rahman V. Walker, 567 F.3d 1278 (11th Cir. 2009) ............................. 6
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`Astiana V. Hain Celestial Ggp., Inc., 783 F.3d 753, 758 (9th Cir.2015) .......... 12,20
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`Bates V. Dow Agrosciences, LLC, 544 U.S. 431, 444
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`(2005) .................................................................... 1,6,8,14,17,22,23,24
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`Beyond Pesticides V. Monsanto Co. (DD.C. 2018) 311 F. Supp. 3d 82, 92 ......... 11
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`Blitz V. Monsanto Company (W.D.Wis. 2018) 317 F.Supp.3d 1042 ................... 11
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`Carias V. Monsanto Company (E.D.N.Y., Sept. 30, 2016) 2016 WL 6803780 ...... 11
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`Conte V. Wyeth, Inc., 168 Cal.App.4th 89, 85 Cal.Rptr.3d 299, 310 (2008)..........12
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`Chemical Specialties Mfrs. Ass'n, Inc. V. Allenby, 958 F.2d 941, 947 (9th Cir.
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`1992) ....................................................................................... 18,22
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`Giglio V. Monsanto (SD. Cal. 2016) 2016 WL 1722859 .................... 11,20,21,25
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`Hardeman V. Monsanto Co., 216 F. Supp. 3d 1037 (ND. Cal.
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`2016), ................................................................... 11,12,15,19,20,21,24
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`Hernandez V. Monsanto (CD. Cal. 2016) 2016 WL 6822311 ..... .......1 1,14,22,25
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`Indian Brand Farms, Inc. V. Novartis Crop Prot. Inc., 617 F.3d 207, 222 (3d Cir.
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`2010) .................................................................................... 13,14,21
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`In re Roundup, 364 F. Supp. 3d 1085 (2019) ......................................... 11,14
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`Johnson V. Monsanto Co., 2018 WL 2324413, at *21 (Ca1.Super.) .................. 11
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`Medtronic Inc. V. Lohr, 518 U.S. 470, 485 (1996) ..................................... 10
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`Mendoza V. Monsanto (ED. Cal. 2016) 2016 WL 3648966 ........................... 11
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`MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., 950 F.3d 764 (11th Cir.
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`2020)
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`6
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` Pilliod V. Monsanto Co. No. RGI7862702 (2019 WL 2849250) ................. 15,16
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`Sheppard V. Monsanto (D. Hawaii, 2016) 2016 WL 3629074 ........................ 11
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`Silkwood v. Kerr-McGee Gogg, 464 U.S. 238 (1984) .................................. 10
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`Reid V. Johnson & Johnson 780 F.3d 952, 964 (9th Cir.2015) ..................... 14,24
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`Wks. V. Home Depot U.S.A., Inc., No. CV 19-6780 FMO (ASX), 2020 WL 5947811
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`(CD. Cal. Sept. 18,2020) ........................................................ 17,19,21,25
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`Wyeth V. Levine, 555 U.S. 555,129 S.Ct. 1187 (2009) ................................. 24
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`United States V. Mead Corg, 533 U.S. 218, 121 S.Ct. 2164 (2001) .............. 23,24
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`Georgia Cases
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`Cbmsler Corp. V. Batten, 450 S.E.2d 208, 211 (Ga. 1994) ............................ 19
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`Federal Statutes
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`28 U.S.C. §1332 .............................................................................. 1
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`28 U.S.C. §1367 .............................................................................. 1
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`28 U.S.C. §1291 .............................................................................. 1
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`iv
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`7 U.S.C. §136 et seq, .................................................................... 1,5,6
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`7 U.S.C. §136(a) ........................................................................ 5,7,22
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`7 U.S.C. §136(j) .............................................................................. 8
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`7U.S.C.§136(p) .............................................................................. 8
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`7 U.S.C. § 136(q) ........................................................................... 8,22
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`7 U.S.C.A. §136(V) ........................................................................... 7
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`Federal Regulations
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`40 CFR. § 168.22(a) ........................................................................ 8
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`40 CFR §§ 159.184(a) ...................................................................... 22
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`40 CFR §§ 159.184(b) (2004) ............................................................. 22
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`Federal Rules
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`F ed.Ru1e Civ.Proc.Rule 12(0), 28 U.S.C.A. ............................................... 6
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`Secondary Sources
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`Robinson, Claire, Michael Antoniou and John Pagan. GMO Myths and Truths: A
`Citizen’s Guide to the Evidence on the Safety and Efficacy of Genetically Modified
`Crops, 3rd Edition. N.p.: Chelsea Green, 2015 ............................................. 4
`
`U.S.E.P.A. Memorandum dated October 1, 2015 ........................................4
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`www.iarc.fr/lfeatured-news.media—centre-iarc-news- l
`
`
`hosate.............................. 4
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`
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`STATEMENT OF JURISDICTION
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`The US. District Court for the Southern District of Georgia had federal
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`diversity jurisdiction over Appellant/Plaintiff’s Complaint by virtue of 28 U.S.C.
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`§l332 in as much as Appellant is a citizen of a different state from Appellee’s states
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`of citizenship, and the aggregate amount in controversy exceeds $75,000 exclusive
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`of interest and costs. The district court had jurisdiction over the state law claims
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`pursuant to 28 U.S.C. §l367.
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`This appeal challenges the district court’s denial of Appellant’s failure to warn
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`claim based on federal preemption. As such, this Court has jurisdiction pursuant to
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`28 U.S.C. §1291.
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`STATEMENT OF THE ISSUES PRESENTED FOR APPEAL
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`Whether Appellant’s failure to warn claim is preempted by the Federal
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`Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §l36 et seq, based
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`on the two requirements for preemption set forth by the Supreme Court in Bates v.
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`Dow Agrosciences= LLC, 544 US. 431, 444 (2005), which state the claim
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`1.) “must be a requirement ‘for labeling or packaging,” and
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`2.) “must impose a labeling or packaging requirement that is ‘in addition to
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`or different from those required under [FIRFA].”
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`USCA11 Case: 21—10994
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`STATEMENT OF THE CASE
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`I.
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`Course ofProceedings
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`On or about December 5, 2017, Appellant John Carson, Sr. filed suit against
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`against Appellee Monsanto Company, the manufacturer of the product Roundup®
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`Weed Killer (“Roundup®”). Doc. 1, paras. 4, 32, 61. Appellant’s claims include a
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`strict liability claim against Appellee for failure to warn consumers,
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`including
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`Appellant, of the dangers associated with Roundup® use and exposure and
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`specifically of the carcinogenic characteristics of glyphosate, the active ingredient
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`in Roundup®. Doc. 1, paras. 81-101.
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`On January 15, 2020, Appellee filed a Motion for Judgment on the Pleadings,
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`which Appellant timely opposed. See generally Doc. 37; Doc. 42. On December 21,
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`2020, the District Court issued its Order partially granting Appellee’s Motion, ruling
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`that certain of Appellant’s claims, including the claim of failure to warn, were
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`preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIRFA”)
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`and dismissing such claims “to the extent [they] are based on the labeling or
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`packaging of Roundup.” Doc. 49 ... Pg. 1, 7—8.
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`The parties subsequently reached a settlement under which Appellant agreed
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`to dismiss his remaining claims; however, Appellant expressly reserved his right to
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`appeal the District Court’s Order dismissing his failure-to-warn claim based on
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`federal preemption. Doc. 56; Appellee’s Civil Appeal Statement, Pg. 2-3. Appellant
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`timely filed notice of this appeal. Doc. 57.
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`[1.
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`Statement ofFacts
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`Appellant routinely applied Roundup® on his lawn for approximately 30
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`years. Doc. 1, para. 60. Following his use of Roundup®, Appellant was diagnosed
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`with malignant fibrous histiocytoma (MFH). 1d, para. 61.
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`History of Glyghosate and Roundug®
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`Roundup® contains the chemical glyphosate,
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`the herbicidal properties of
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`which were discovered by Monsanto chemist John Franz in 1970. I_d., para 13.
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`Appellee began marketing Roundup® in the mid-1970’s as a “safe” general purpose
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`product for widespread consumer use to kill plants considered to be weeds. I_d., paras.
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`12—13. Specifically, glyphosate kills weeds by translocating the system herbicide to
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`their roots, etc. where it interferes with the plant’s ability to form aromatic amino
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`acids necessary for protein synthesis. E., para. 11. These treated plants generally
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`die within two to three days of treatment; however, because it is absorbed into the
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`plant, glyphosate cannot be completely removed by washing or peeling produce or
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`by milling, baking or brewing grains.
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`id,
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`Within the last decade, health organizations have determined that glyphosate
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`is a probable cause of cancer. m., para. 12. Even though reports have surfaced
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`exposing the dangers of Roundup®, Appellee has continued to market this product
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`as safe for use without causing harm to people or the environment. 1Q. Even further
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`to that effect, Appellee has championed falsified data and attacked legitimate studies
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`that revealed its dangers. Q. As such, reports and tests conducted by the
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`Environmental Protection Agency (EPA) that
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`indicate glyphosate is safe are
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`misleading; the process was corrupted by the fact that several of the studies were
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`conducted or sponsored by Appellee itself.I Likewise, a 2015 EPA report by the
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`Cancer Assessment Review Committee (CARC) which maintained that glyphosate
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`is not likely to be carcinogenic to humans, admitted that most of the studies were
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`“underpowered, suffered from a small sampling of cancer cases with glyphosate
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`exposes, and had risk/odds ratios with large confidence intervals.” Doc. 42, Pg. 3.
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`Additionally, some of the studies had biases associated with recall and missing data.2
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`It goes without saying that EPA’s actions have raised some suspicions.
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`The World Health Organization (WHO), which is a governmental entity and
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`a specialized agency of the United Nations, believes that glyphosate is making
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`people sick. Doc. 42, Pg. 3. The research arm of the WHO, the International Agency
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`for Research on Cancer (IARC) determined that glyphosate is probably carcinogenic
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`to humans based upon limited evidence of cancer in humans and sufficient evidence
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`of cancer in experimental animals.3 As the result of this and numerous other
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`1 Robinson, Claire, Michael Antoniou and John Fagan. GMO Myths and Truths: A Citizen‘s Guide to the Evidence on
`the Safety and Efficacy of Genetically Modified Crops, 3rd Edition. N.p.: Chelsea Green, 2015.
`2 U.S.E.P.A. Memorandum dated October 1, 2015. §_e_e Exhibit A attached to Doc. 42.
`3 www.iarc.fr
`featured-news.media~centre-iarc—news- I
`hosate. gig Exhibit B attached to Doc. 42.
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`4
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`scientific data, the majority of countries internationally are taking proper action and
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`banning the use of glyphosate. Doc. 1, paras. 54-59.
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`Registration of Herbicides Including R0undug® Under Federal Law
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`The manufacture, formulation and distribution of Roundup® is regulated
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`under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.
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`§136 et seq; Doc. 1, para. 14. Because the FIFRA requires that all pesticides be
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`registered with the EPA, as part of the registration process the EPA requires testing
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`to evaluate the potential for exposure, toxicity to humans and other adverse effects.
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`m., para. 15. This registration by the EPA is not an assurance of safety. E. Both
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`the EPA and the State of the Georgia registered Roundup® for distribution, sale and
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`manufacture in the United States and Georgia, respectively. 191., para. 17. Currently,
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`the EPA is re-evaluating all pesticide products through a Congressionally-mandated
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`process called re-registration wherein the EPA has demanded the completion of
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`additional tests and the submission of data for review and evaluation.
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`7 U.S.C.
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`§136a-1;m., para. 19.
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`In short, Appellee has known for decades that it falsely promotes the safety of
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`Roundup®. Doc.
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`1, paras. 31-34.
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`Appellee researched, developed,
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`tested,
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`manufactured, inspected, marketed, promoted and otherwise released into the stream
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`of commerce its Roundup® products, yet
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`failed to ever warn users of the
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`carcinogenic characteristics of glyphosate which were fully known to Appellee. 1d,,
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`paras. 21-27, 31-34; 81-101.
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`III.
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`Standard ofReview
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`An appeal reviewing a district court order granting judgment on the pleadings is
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`reviewed de novo, and the facts in the complaint are accepted as true and viewed in
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`the light most favorable to the nonmovant. MSPA Claims 1, LLC v. Kingsway
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`Amigo Ins. Co., 950 F.3d 764 (11th Cir. 2020); Abdur—Rahman v. Walker, 567 F.3d
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`1278 (11th Cir. 2009); Fed.Rule Civ.Proc.Rule 12(0), 28 U.S.C.A.
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`SUMMARY OF THE ARGUMENT
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`The District Court erroneously ruled that Appellant’s failure to warn claim
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`met both criteria for preemption by the Federal
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`Insecticide, Fungicide, and
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`Rodenticide Act (“FIFRA”), 7 U.S.C. §136 et seq., as forth by the Supreme Court in
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`Bates v. Dow Agrosciences, LLC, 544 US. 431, 444 (2005). Doc 49, Pg. 8. The
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`Bates criteria for preemption specify that the state law 1.) “must be a requirement
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`‘for
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`labeling or packaging,” and 2.) “must
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`impose a labeling or packaging
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`requirement that is ‘in addition to or different from those required under [F IRFA].”
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`Doc 49, Pg 7, citing Bates v. Dow Agrosciences, LLC, supra.
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`However, Appellant’s failure to warn claim, in fact, is not a requirement of
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`labeling or packaging, nor does it
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`include imposing labeling or packaging
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`requirements that are in addition to or different from those required under FIFRA.
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`As such, Appellant’s failure to warn claim meets neither requirement set forth in
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`Bates and should not have been dismissed as preempted by FIFRA.
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`ARGUMENT AND CITATION OF AUTHORITY
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`A. Appellant’s Failure to Warn Claim is Not a Reguirement for Labeling or
`Packaging
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`In examining the first requirement imposed by Bags, the Court specified that
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`Appellant’s “failure to warn claim asserts that Monsanto failed ‘to provide adequate
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`warnings or other clinically relevant information and data regarding. . .the risks
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`associated with” Roundup®.” Doc. 49, Pg 7. The Court cursoriiy determined, “This
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`most definitely is a requirement for labeling and packaging,” citing Bates. E.
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`However, a closer
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`examination of FIFRA, the Bates decision, and subsequent
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`federal law interpreting same dictates otherwise when considered with the totality of
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`Appellant’s failure to warn claim as set forth in his Complaint.
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`FIFRA
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`FIFRA regulates the use, sale and distribution of pesticides, requiring that they
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`must be registered in order to prevent unreasonable adverse effects. 7 U.S.C.A.
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`§136a. Pursuant to §136v, a state may regulate the sale or use of any federally
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`registered pesticide or device in the state, but only if and to the extent “such State
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`shall not impose or continue in effect any requirements for labeling or packaging in
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`addition to or different from those required under this subchapter.” 7 U.S.C.A.
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`§136v. A “label” is defined under FIFRA as “the written, printed, or graphic matter
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`7
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`on, or attached to, the pesticide or device or any of its containers or wrappers.” 7
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`U.S.C.§ 136(p)(l).
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`FIFRA specifically prohibits herbicide manufacturers from misbranding their
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`products. 7 U.S.C. § 136j(a)(1)(E). An herbicide is misbranded if “the label does not
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`contain a warning or caution statement which maybe necessary and if complied
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`with, together with any requirements imposed under section 136a(d) of this title, is
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`adequate to protect health and the environment[.]” 7 U.S.C. § l36(q)(1)(F)(G)B.
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`A product is further misbranded if “its label contains a statement that is ‘false or
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`misleading in any particular way.” Bates, 544 US. at 438. The corresponding
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`regulations add that “it [is] unlawful for any person to ‘offer for sale’ any pesticide
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`if claims made for it as part of its distribution or sale differ substantially from any
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`claim required in connection with its registration under FIFRA...” 40 CPR. §
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`168.22(a). “The EPA interprets these provisions as extending to advertisements in
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`any advertising medium to which pesticide users of the general public have
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`access.” L91.
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`Bates v. Dow Agrosciences, LLC
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`As discussed above, a two-part test for determining whether a state law claim
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`is preempted under FIFRA was developed by the Supreme Court in Bates v. Dow
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`Agrosciences, LLC, 544 US. 431, 444 (2005): 1) it must be a “requirement for
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`labeling or packaging” and 2) it must impose a labeling or packaging requirement
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`that is “in addition to or different” from those required under this subchapter.
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`The specific facts of Jim were that a herbicide manufacturer sought a
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`declaratory judgment action against peanut farmers whom were threatening to sue it
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`for crop damages allegedly caused by its herbicide. 1d. at 431. Those farmers
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`counterclaimed for breach of express warranty, fraud, violation of Texas Deceptive
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`Trade Practices Act, strict liability, negligent testing and negligent failure to warn.
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`131.
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`It was abundantly clear to the Supreme Court that many of the common-law
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`rules upon which the farmers relied did not satisfy the first condition of their
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`preemption test.
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`I_d_. at 444. Rules that require manufactures to design reasonably
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`safe products, to use due care in conducting appropriate testing of their products, to
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`market products free of manufacturing defects, and to honor their express warranties
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`or other contractual commitments plainly do NOT qualify as requirements for
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`“labeling or packaging.”
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`I_d. None of these common-law rules requires that
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`manufacturers label or package their products in any particular way and therefore
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`the farmers’ claims for defective design, defective manufacture, negligent testing
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`and breach of express warranty are NOT pre-empted. 1d. The Court did not find
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`preemption of the farmers’ claims for fraud and failure to warn, but
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`instead,
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`remanded them to the court of appeals because a question of Texas law was involved.
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`E. at 453.
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`In its decision, the Court noted, “[t]he long history of tort litigation
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`against manufacturers of poisonous substances adds force to the basic presumption
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`against preemption.” lg. at 432.
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`Bates went on to clarify that a state—law labeling requirement is not preempted
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`by §136v(b) if it is equivalent to, and fully consistent with, FIFRA’s misbranding
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`provisions.
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`_I_c_l. at 447. The Supreme Court held that,
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`in this context,
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`they
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`nevertheless have a duty to accept the reading that disfavors preemption.
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`I_d. at 449,
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`citing Medtronic Inc. v. Lohr, 518 US. 470, 485 (1996), because the states are
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`independent sovereigns in our federal system, we have long presumed that Congress
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`does not cavalierly preempt state law causes of action. “The long history of tort
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`litigation against manufactures of poisonous substances adds force to the basic
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`presumption against preemption. If Congress had intended to deprive injured parties
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`of a long available form of compensation, it surely would have expressed that intent
`
`more clearly.” I_d. at 450, citing Silkwood v. Kerr-McGee C03}, 464 US. 238
`
`(1984). Because of the long history of emphasizing the importance of providing an
`
`incentive to manufacturers to use the utmost care in the business of distributing
`
`inherently dangerous items, it seems unlikely that Congress considered a relatively
`
`obscure provision like §136v(b) to give pesticide manufacturers virtual immunity
`
`from certain forms of tort liability.
`
`id. Under the Court’s interpretation, §136v(b)
`
`retains a narrow role. 1d, at 452.
`
`The Supreme Court further made clear in Bates that FIFRA allowed “[p]rivate
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`USCA11 Case: 21—10994
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`Date Filed: 05/05/2021
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`remedies that enforce [FIFRA's] misbranding requirements[.]” E. at 544.
`
`Indeed,
`
`
`the Bates Court allowed state-law failure-to-warn claims to go forward, as long as
`
`those claims were consistent with F IFRA, even though the EPA had approved the
`
`insecticide label at issue. I_d. at 434-35, 452-531.
`
`Recent Decisions Consistently Hold that Failure to Warn Claims Against
`Monsanto are Not Preempted by FIFRA
`
`Appellee Monsanto has faced a myriad of suits in which federal courts have
`
`repeatedly held that failure to warn claims identical to Appellant Carson’s are not
`
`preempted by FIFRA. E In re Roundup, 364 F. Supp. 3d 1085 (2019); mg
`
`Pesticides v. Monsanto Co. (D.D.C. 201 8) 311 F. Supp. 3d 82, 92; Blitz V. Monsanto
`
`Company (W.D.Wis. 2018) 317 F.Supp.3d 1042; Hernandez V. Monsanto (CD. Cal.
`
`2016) 2016 WL 6822311; Hardeman V. Monsanto Co., 216 F. Supp. 3d 1037 (ND.
`
`Cal. 2016); Sheppard V. Monsanto (D. Hawaii, 2016) 2016 WL 3629074; Mendoza
`
`V. Monsanto (ED. Cal. 2016) 2016 WL 3648966; Giglio V. Monsanto (S.D. Cal.
`
`2016) 2016 WL 1722859; Carias V. Monsanto Company (E.D.N.Y., Sept. 30, 2016)
`
`2016 WL 6803780, at *2; Johnson V. Monsanto Co., 2018 WL 2324413, at *21
`
`(Cal.Super.) In fact, every court which has reviewed the issue of whether failure to
`
`warn claims asserted against Monsanto such as Appellant’s are pre—empted by
`
`FIFRA has disagreed with the District Court in the case sub judice.
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`In Hardeman V. Monsanto Co., 216 F. Supp. 3d 1037 (NB. Cal. 2016),
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`Monsanto filed a motion to dismiss plaintiff’s failure to warn claims again asserting
`
`
`that they were preempted under FIFRA. Relying upon Bates, the district court denied
`
`Monsanto’s motion ruling that a state law requirement “is not pre-empted by §
`
`l36v(b)
`
`if
`
`it
`
`is
`
`equivalent
`
`to,
`
`and
`
`fully
`
`consistent with,
`
`FIFRA's
`
`
`misbranding provisions.” I_d. at *103 8, citing Bates supra at 447. Further, the court
`
`ruled Hardeman's failure-to-warn claims are consistent with FIFRA even to the
`
`extent they attack Roundup®’s product labeling:
`
`FIFRA requires a pesticide 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. § l36(q)(l)(G); see also 40 C.F.R. § 156.60.
`California law, similarly, requires a manufacturer to warn either of any risk
`that is known or knowable (in strict liability), or at least those risks that “a
`reasonably prudent manufacturer would have known and warned about” (in
`negligence). Comte v. Wyeth, Inc, 168 Cal.App.4th 89, 85 Cal.Rptr.3d 299,
`310 (2008). If anything, a manufacturer's duty under California law is slightly
`narrower
`than its duty under FIFRA: California law sometimes
`(in
`negligence) allows a manufacturer to escape liability where a warning would
`be unreasonable, but FIFRA seems always to require a warning that is
`“necessary” and “adequate” to protect human health—whether or not such a
`warning is otherwise reasonable. In this light, it's hard to see how Hardeman’s
`failure-to-warn
`claims
`could
`“be
`construed more
`broadly
`than”
`FIFRA. Astiana v. Ham Celestial Grp.,
`Inc, 783 F.3d 753, 758 (9th
`Cir.2015).
`
`Id.
`
`Monsanto further contended Hardeman’s
`
`failure-to-warn claims were
`
`nonetheless preempted because the EPA has approved Roundup®’s product labels.
`
`I_d. The court ruled, however, that
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`the EPA’s authority to enforce FIFRA does not prohibit private litigants from
`also enforcing that statute: the Supreme Court, rejecting an argument against
`“giv[ing] juries in 50 States the authority to give content
`to FlFRA's
`misbranding prohibition,” Bates, 544 US. at 448, 125 S.Ct. 1788, has instead
`allowed
`“[p]rivate
`remedies
`that
`enforce
`[FIFRA's] misbranding
`requirements,” id. at 451, 125 S.Ct. 1788. And the mere fact that the EPA has
`approved a product label does not prevent a jury from finding that that same
`label violates FIFRA. In Bates, the Supreme Court allowed state-law failure-
`to-warn claims to go forward as long as those claims were consistent with
`F IFRA, id. at 452~53, 125 S.Ct.
`l788——even though the EPA had approved
`the insecticide label at
`issue, id. at 434—35, 125 S.Ct. 1788. 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.” Indian Brand Farms, Inc. v. Novartt’s Crop Prat. Inc., 617 F.3d
`207, 222 (3d Cir.2010).
`
`Id.
`
`Monsanto additionally argued that Hardeman’s failure-to-wam claims were
`
`preempted because the “EPA repeatedly has concluded that glyphosate is not a
`
`carcinogen.” l_d_. at * 1039. The court rejected this argument, ruling
`
`almost all of the findings Monsanto cites were made in regulations
`interpreting the Food, Drug, and Cosmetic Act—not FIFRA. FDCA
`regulations
`don't
`“give
`content
`to
`FIFRA's
`misbranding
`standards,” Bates, 544 US. at 453, 125 S.Ct. 1788, so they don't affect the
`extent to which FIFRA preempts state law.
`
`Monsanto does cite one document from the FIFRA context—a fact sheet
`
`discussing glyphosate's re-registration as a pesticide, which notes the EPA's
`1991 classification of glyphosate as a “Group E oncogen” showing “evidence
`of non—carcinogenicity for humans.” But neither the fact sheet nor the
`underlying 1991 classification actually conflict with Hardeman's complaint,
`because the classification “emphasized
`that designation of an agent in
`Group E is based on the available evidence at the time of evaluation and
`should not be interpreted as a definitive conclusion that the agent will not be
`a carcinogen.” And even if the fact sheet or classification did conflict with
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`force of
`the
`that either has
`it's not clear
`complaint,
`Hardeman‘s
`law, see Mead, 533 US. at 229, 121 S.Ct. 2164, so it's not clear that either has
`preemptive effect, see Reid v. Johnson & Johnson, 780 F.3d 952, 964 (9th
`Cir.2015).
`
`Id.
`
`In Hernandez v. Monsanto, Ines Hernandez was diagnosed with non-Hodgkin
`
`lymphoma after using Roundup® for approximately twenty years and brought
`
`claims against Monsanto including failure to warn. Hernandez v. Monsanto Co., No.
`
`CV 16-1988-DMG (EX), 2016 WL 6822311, at *2 (CD. Cal. July 12, 2016).
`
`In
`
`response Monsanto filed a motion to dismiss, arguing that plaintiff’s California
`
`common law warnings—based
`
`claims were preempted citing Bates for
`
`the
`
`proposition that “[s]tate-1aw requirements must
`
`be measured against any relevant
`
`EPA regulations that give content to FIFRA’s misbranding standards.” E. at *6,
`
`
`citing Bates, 544 US. at 453.
`
`In ruling that plaintiff’s failure to warn claims were
`
`
`not preempted, the court ruled that the Supreme Court’s decision in Bates compelled
`
`the finding that the EPA's approval of Roundup®’s label did not have “the force of
`
`law” and “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.” Id, quoting Indian
`
`Brand Farms, 617 F.3d at 222.
`
`In In re Roundup Prod. Liab. Litig., 364 F. Supp. 3d 1085 (ND. Cal. 2019),
`
`plaintiffs diagnosed with non-Hodgkin's lymphoma brought a products liability
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`action against Monsanto, which moved for summary judgment on the grounds that
`
`plaintiffs’ failure to warn claims were expressly preempted by FIFRA. The court
`
`denied
`
`Monsanto’s
`
`motion,
`
`ruling
`
`that
`
`it
`
`had
`
`previously rejected Monsanto's same argument in Hardeman, specifying that states
`
`are permitted to impose their own pesticide labeling requirements where those
`
`requirements are “equivalent to, and fully consistent with, FIFRA’S misbranding
`
`provisions” 1d. at 1087, citing Hardeman v. Monsanto Co., 216 F.Supp.3d 1037,
`
`1038-39 (ND. Cal. 2016). The court further ruled
`
`As relevant here, FIFRA requires manufacturers to provide a warning that
`“may be necessary and if complied with
`is adequate to protect health.” 7
`U.S.C. § 136(q)(1)(G). California law m which asks whether a risk is known
`or knowable (for strict liability) or reasonably should have been known (for
`negligence) — is consistent with this requirement.
`
`fl., citing Hardeman, 216 F.Supp.3d at 1038
`
`In its decision, the court tellingly noted “.. .there is strong evidence from which
`
`a jury could conclude that Monsanto does not particularly care whether its product
`
`is in fact giving people cancer, focusing instead on manipulating public opinion and
`
`undermining anyone who raises genuine and legitimate concerns about the issue.”
`
`Id.
`
`In Pilliod v. Monsanto, a California jury similarly found recently that
`
`Monsanto failed to warn