For decades, Roundup has been at the center of sprawling product liability litigation alleging that its active ingredient, glyphosate, causes cancer and that its manufacturer, Monsanto, failed to warn consumers of those risks. Plaintiffs contend that a cancer warning should have appeared on the pesticide’s label. Monsanto has argued in turn that any such warning would require prior approval by the Environmental Protection Agency (EPA) and that state failure-to-warn laws are expressly preempted by Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Under FIFRA, pesticide labeling must conform to federal requirements, and 7 U.S.C. § 136v(b) prohibits states from imposing labeling requirements “in addition to or different from” those required by the statute. The core dispute in the Roundup litigation is how courts should identify the relevant federal requirement when applying the Supreme Court’s “parallel requirements” test established in Bates v. Dow Agrosciences LLC.
Federal appellate courts are sharply divided on this issue. The Ninth and Eleventh Circuits held that FIFRA’s general misbranding provision provides the relevant federal standard and rejected Monsanto’s preemption argument. In contrast, the Third Circuit concluded that the EPA’s Preapproval Regulation carries the force of law and establishes a “requirement” under FIFRA, mandating federal preemption. This Comment argues that the Third Circuit correctly incorporated the Preapproval Regulation into the federal component of the parallel requirements test, aligning with Supreme Court precedent and the logic of Riegel v. Medtronic, Inc.
