California Appellate Court Upholds Monsanto’s Duty to Warn Based on Potential Risks

On appeal, the First District affirmed the jury’s finding on the grounds that Monsanto could be liable for failing to warn of the cancer risk posed by the products at issue because the carcinogenic risk was “known or knowable in light of the scientific and medical knowledge generally accepted in the scientific community” by the time Plaintiff first started using the product, and thereafter.

This decision comes less than a month after a trial court in the Eastern District of California prohibited the state of California from enforcing a carcinogenicity warning on Roundup products containing glyphosate. Glyphosate, the Roundup herbicides’ active ingredient, is currently identified as a carcinogen on California’s Proposition 65 list of chemicals, which would normally carry a warning to consumers that the product can create exposure to carcinogens, pursuant to the state regulation. However, the court in National Ass’n of Wheat Growers v. Becerra (E.D. Cal. 6/22/20) 2020 WL 3412732, found that there was insubstantial authority to support the State’s statutory warning. This decision has effectively relieved glyphosate-containing product manufacturers from placing Proposition 65 cancer warnings on their products, on the grounds that requiring the warning would be misleading and a violation of free speech.

California’s appellate court, in contrast, applied the far broader strict liability standard, which necessitates general warnings for cancer on the Roundup herbicides. Under a strict liability failure to warn standard, the court found that Monsanto had the duty to warn of potential risks and side effects that were known or knowable in light of generally accepted scientific and medical knowledge at the time of manufacture and distribution. The court found that “the known or knowable” prong was satisfied in Johnson v. Monsanto Co. due to the studies introduced at the trial court level, which showed the chemical’s potential genotoxicity, despite a lack of scientific consensus on the topic. However, this section of the appellate court’s decision was not certified for publication due, in part, to a lack of developed factual record, and therefore cannot be cited as precedent for future similar lawsuits. Rather, the decision provides valuable insight as to how future failure to warn cases may be decided in the presence of a more robust factual record.

In another unpublished section, the court found that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt the warnings that Monsanto would need to provide pursuant to the strict liability standard. Ruling that there was no express preemption of warnings for cancer since the states retain power to ban a pesticide that EPA has approved, the court held that that California’s labeling requirements were consistent with FIFRA’s requirements that labels include necessary warnings and cautionary statements. The appellate court found that, furthermore, Monsanto had not demonstrated that impossibility preemption exists. Rather, it recognized that state regulations requiring cancer warnings, such as Proposition 65, could be properly followed by providing point-of-sale warnings if on-product warnings diverged from those required by FIFRA. It declined to agree with the U.S. Environmental Protection Agency’s position that glyphosate is harmless to humans and that therefore a cancer warning on glyphosate is unnecessary.

Despite its affirmation of the judgment, the court of appeal dramatically reduced compensatory damages from $39 million to $10.25 million and punitive damages from $78 million to $10.5 million.

Because much of the appellate decision is uncitable, there exists ample room for the myriad other courts deciding Roundup cases to forge their own path. It remains to be seen whether the decision in Johnson v. Monsanto Co. is a taste of what is yet to come, or an outlier.