Roundup Ruling’s Preemption Principle Goes Beyond Pesticides

AGG Environmental practice chair Beth Davis and Healthcare attorney Aditya Krishnaswamy co-authored an article for Bloomberg Law arguing that the Supreme Court’s ruling in Monsanto Co. v. Durnell established a preemption principle with implications far beyond pesticide labeling.

The Court ruled 7-2 that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preempts state failure-to-warn claims that target Environmental Protection Agency-approved labeling. Beth and Aditya note this reasoning could apply to other federal statutes with similar labeling rules, including those covering medical devices, meat and poultry inspection, over-the-counter drugs, and cosmetics. They specifically focused on cosmetics regulation, where a 2022 law gave the FDA broad new authority but also kept a tort savings clause. That combination creates tension with Durnell‘s reasoning.

“A claim that a cosmetic product should carry a cancer warning the FDA hasn’t mandated faces a serious obstacle under Durnell‘s reasoning. A plaintiff alleging that a product fails to meet cosmetic regulation act’s own safety substantiation standard occupies stronger ground, because that claim parallels federal requirements rather than supplementing them.”

Beth and Aditya recommend that companies in federally regulated industries actively participate in agency rulemaking, since each finalized regulation strengthens the preemption foundation available to defendants.

“A likely path to enforcing state and tort law requirements after Durnell is to frame claims as parallel to federal requirements rather than as additions to them. A claim that a product violates an agency’s own standard will survive, while a claim that the agency should have required more will not.”

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