ELR Citation: 53 ELR 20104
No(s). 21-10994 (11th Cir. Jul 10, 2023)

In an en banc decision, the Eleventh Circuit vacated a panel opinion in a lawsuit concerning a Georgia resident's cancer following decades of using a weedkiller containing glyphosate. The resident argued the weedkiller's manufacturer knew or should have known its product was carcinogenic, but failed to warn users of the danger. The manufacturer contended that FIFRA §136v(b) expressly preempted the suit. A district court agreed, holding §136v(b) expressly preempted some of the resident's claims under Georgia law because EPA had approved a label that lacked a cancer warning and the Agency classifies glyphosate, the main ingredient, as "not likely to be carcinogenic." The appellate court reversed, finding that Georgia's common-law standard for product safety warnings was less demanding than the federal prohibition against marketing "misbranded" pesticides. It held that EPA's approval of the labels without a cancer warning did not preempt the Georgia cause of action. The manufacturer petitioned for a rehearing en banc. The court granted the petition, vacated the panel opinion, and remanded to the panel to determine whether the express preemption language in FIFRA bars the suit.