EPA Supports Monsanto in Court. Here’s Why.

It’s no secret that Monsanto and glyphosate have taken a beating in court over the last couple years. After IARC unfairly classified the herbicide as a probable carcinogen, people have lined up to sue the company. And juries have awarded verdicts in the millions.

Not surprisingly, Monsanto appealed the first jury verdict. And the appeal is currently pending in federal court. One argument pushed by the plaintiff is that Monsanto knew glyphosate had the potential to cause cancer, and it failed to warn people who were using it. (Monsanto is primarily arguing there is no casual connection, so they can’t be liable.)

But now the EPA has stepped into the fray. Here’s why.

The EPA has oversight over all pesticides in the country. That authority is given to them by the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA. FIFRA requires specific labels for each pesticide, which gives the user a bunch of information. Most relevant here, the label tells users how to use it, what safety gear is necessary, and what risks the user incurs. And only the EPA gets to decide what goes onto the label.

The EPA has repeatedly found no link between glyphosate and cancer. So it actually wouldn’t allow Monsanto to put a cancer warning on the glyphosate labeling. Why? Because that’s not a risk. And EPA wants to give useful and real information to pesticide applicators, not wishful thinking by trial attorneys.

Now EPA has filed a brief with the appellate court on this issue. It says that Monsanto shouldn’t be liable for not providing a warning that glyphosate causes cancer. The EPA, it argues, is the only agency that gets to decide whether that warning is on the label. And it specifically decided no warning was required. So Monsanto was following federal law. And how can you get in trouble for complying with federal law?

It’s certainly an interesting argument. Without getting into too much legalese, it’s true that you can still be negligent even if you’re following the law. But this is the flip side: can you be liable for not providing a warning, if providing a warning would’ve broken the law?

It’s also important for the EPA to make this argument. While it may not end the glyphosate lawsuits, it is crucial to FIFRA’s effectiveness. Pesticide labels are the law. And if state law or tort law can override those labels–and EPA’s authority over them–it erodes the labels’ power.

Right now we have one, uniform, and trusted labeling standard. It needs to stay that way. It’s true that state’s can impose more onerous regulations on pesticides (even banning them entirely). But they can’t mess with the label. If they could, that would make the labels essentially meaningless. Because literally every single pesticide label would say users run the risk of cancer and every other disease known to mankind. That tells the user nothing.

So I’m happy the EPA got involved. And I’ll be following this case closely. Hopefully the appellate court will realize what’s at stake here.