In Carson v Monsanto, Case No. 21-10994 (11th Cir. July 10, 2023) the en banc Eleventh Circuit held that the express preemption provision in the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) should be interpreted according to ordinary principles of statutory interpretation, and not subjected to additional requirements imposed in implied preemption contexts. The opinion issued by en banc court reversed the panel’s earlier decision and remanded the case back to the panel for further consideration of whether the claim is preempted.
Here, plaintiff George Carson developed cancer after decades of using the popular weedkiller Roundup. He sued its manufacturer, Monsanto Company, for failing to warn him that the product can increase users’ cancer risks. The district court ruled that a provision of the FIFRA, 7 U.S.C. ? 136v(b), expressly preempts some of Carson’s claims under Georgia law because the EPA had approved a label for Roundup that lacked a cancer warning and the Agency classifies Roundup’s main ingredient?glyphosate?as “not likely to be carcinogenic.”
Carson argued that his suit was not preempted because the relevant agency actions did not have the force of law, which he characterizes as a prerequisite for express preemption. After a panel of this 11th Circuit reversed the district court, the 11th Circuit granted rehearing en banc to address whether a “force-of-law” analysis is relevant in this context.
The Eleventh Circuit then concluded that the question at issue must be answered by recourse to ordinary principles of statutory interpretation, and the full court remanded the appeal to the panel to decide whether Caron’s suit is preempted. The court explained that a conflict between a state-law rule that has the force of law and a federal agency rule that does not have the force of law is not the type of conflict between state and federal legal obligations that the Supremacy Clause addresses. But this reasoning does not extend to express-preemption cases as the meaning of the express-preemption provision?not conflicting federal and state legal obligations?triggers preemption.