An appellate court decided that the registration of the label on an herbicide product is not the equivalent of approval by the U.S. Environmental Protection Agency (EPA).
In John Carson v Monsanto, the 11th Circuit Court of Appeal earlier this month weighed in on the force of law EPA approval has and whether it’s binding.
“What the 11th Circuit held was that just because the EPA permitted registration of the label doesn't mean that Bayer was in compliance with federal law, much less state law,” said Ted Frank, senior attorney, and director of litigation with the Hamilton Lincoln Law Institute.
Bayer is the sole owner of the St. Louis-based Monsanto, which it acquired for $63 billion in 2018.
“Bayer has been arguing for years that federal law prevents these sorts of lawsuits from being brought at all and the district court agreed but the 11th circuit disagreed,” Frank told the St. Louis Record. “It was a legal question that the court of appeals decided fresh so that they did not give any deference to the district court's decision on the law. They came to their own conclusion.”
Carson’s case was on appeal from the Southern District of Georgia where the use of Roundup for 30 years allegedly lead him to develop a malignant fibrous histiocytoma and that Monsanto did not warn of the risk of cancer on the product’s label, according to media reports.
“The 11th Circuit is following what the Ninth Circuit earlier decided and that the U.S. Supreme Court refused to review so I think Bayer was hoping for a circuit split where two courts of appeal disagree on a similar legal issue but now they are in a position where both appellate courts have ruled against them, which will make it harder to get U.S. Supreme Court review and will not get them the certainty they want as they try to raise these defenses relating to federal law preempting state law causes of action,” Frank said.
As previously reported, the EPA was ordered by the 9th U.S. Circuit Court of Appeals to review glyphosate at the request of environmental groups.
Glyphosate is the active ingredient in Roundup.
“There was registration but the legal effect of registration is a different question,” Frank said. "They're asking for a different rule and formal disapproval of the ingredient."
As a result of the 11th Circuit Court of Appeal's reversal, the 11th Circuit as a venue is more attractive for plaintiff's lawyers to file Roundup lawsuits against Bayer and Monsanto.
"This is technically an open question in other circuits so having a geographic location where one knows that Bayer's affirmative defense has been rejected is obviously going to be attractive to attorneys," Frank added.
The 11th Circuit Court of Appeal oversees federal courts in Georgia, Florida, and Alabama.