Roundup cancer verdict upheld, Nebraska bans treated seed for ethanol, and other legal news to ponder from Cape Law Firm

Roundup Failure to Warn Claim not Preempted by FIFRA

Last week the U.S. 9th Circuit upheld the jury’s verdict in one of the Roundup cancer cases, rejecting Monsanto’s argument that FIFRA prevented it from including a warning on the Roundup label. Plaintiff Ed Hardemann won a trial in 2019 involving claims that years of Roundup use was the cause of his Non-Hodgkin lymphoma. One of Hardemann’s claims was that Monsanto failed to warn users of the risk of cancer from Roundup. As we’ve discussed in previous newsletters, pesticide manufacturers have long argued that FIFRA, the federal pesticide law, preempts virtually any pesticide claim because it would cause them to change labeling that has been approved by the EPA. The 9th Circuit applied a 2005 Supreme Court case to find that California’s duty to warn was consistent with FIFRA’s misbranding provisions, and therefore not preempted. The court also noted that pesticide registrants have a continuing duty under FIFRA to report “additional factual information regarding unreasonable adverse effects” even after the EPA has approved a pesticide’s label.
Bayer expected the adverse ruling from the 9th Circuit, so it recently settled a Roundup cancer case in Georgia by paying the plaintiff to appeal his case to the 11th Circuit. Bayer hopes to create a split in the appellate courts on the issue of FIFRA preemption which would set the stage for an appeal to the U.S. Supreme Court.

Nebraska restricts use of treated seed for ethanol production

Nebraska recently passed one of the first laws in the country restricting the use of treated seed in the production of ethanol. Under the new law, ethanol companies will be prohibited from using treated seed to manufacture ethanol if it results in a byproduct that is unsafe for livestock consumption or land application. This first-of-its-kind legislation was passed in response to the discovery of numerous environmental violations and contamination caused by ethanol producer, AltEn, from improperly storing and using treated corn seed for making ethanol.

Cape Law Firm’s Frequently (or Randomly) Asked Questions

” How much does it cost to apply for a Plant Variety Protection Certificate?”

The Plant Variety Protection Office requires a fee of $5,150 when the application is filed. The fee covers the PVP Office’s examination of the application and the fee for the certificate. Some applications may incur additional fees. For example, requests for an extension of time to respond adds a fee ($89), as well as data submissions after initial filing ($489).

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