'I Worry A Little Bit': Ketanji Brown Jackson Calls Out 'Inconsistency' Of Monsanto's Argument

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[00:00:00]Justice Jackson.

[00:00:01]So, I guess I'm not sure that retroactivity in the questions that you explored with Justice Kavanaugh necessarily captures all that's going on here, and I worry a little bit about the way in which you are describing this in its seeming inconsistency with what we said in Bates. So, I I think that one way to understand this scheme, the the statute scheme, is that there's a registration requirement, and there's a no misbranding requirement.

[00:00:31]And every 15 years EPA makes a registration decision that sets the requirements for a pesticide's label based on the information that EPA has considered at that time.

[00:00:44]But, in the years between registrations, the company still has to comply with the no misbranding requirement. And I I guess I'm trying to understand why it couldn't be that both the EPA and state tort law can enforce the misbranding requirement in the interregnum. So, I mean, I I think in Bates we said that FIFRA complete uh contemplates that pesticide labels will evolve over time, and we said, quote, "Tort suits can serve as a catalyst in this process."

[00:01:18]And you can see how that happens, right?

[00:01:21]When new information comes in in that 15 years, the threat of tort liability is one thing that spurs the manufacturer to go to the EPA and make sure that they're giving them the information, but it also um enforces the no misbranding requirement. So, why isn't the kind of concept of the way the scheme works, as we laid it out in Bates, how we should be thinking about it? It's it's proactive. It's it's um prospective, not retrospective, in that sense. So, let me try to use Bates as an example of in answering your question. So, the one thing I think Bates was clearest about is and the the kind of the clearest example anyways that Bates contemplated of a conflict that would trigger the express preemption provision is federal law says, "For this particular pesticide, all you need is a caution label." And state law comes in and says, "No, for that pesticide, you need a danger uh label." The Bates says that's a clear clear conflict. Well, how does EPA decide that a particular a pesticide needs just a caution label, and not the more serious danger level? They do that in the registration process by examining the toxicity of the substance. And then they say, "All right, this is sufficiently non-toxic that it just requires a caution label." Now, let's say 5 years goes on, and somebody with some new science goes in before a state court jury and says, "Actually, EPA got it wrong. This thing is more toxic than they thought. And so, under Missouri law, you need a danger label."

[00:02:52]I think that would still be clearly clearly preempted by Bates, and the fact that you could tell the jury, "You need the danger label in order for the product to be not misbranded." would not change anything.

[00:03:04]>> but but but isn't there a world in which that is a different circumstance, because the EPA has not yet considered that information? So, you're not actually conflicting with you're not doing anything different or in addition to the uh determination that the EPA had made based on the information that was before it. I I guess I just I see that I mean, it's nuanced, for sure. I mean, the way you're saying it is pretty straightforward, but you're reading the express preemption statute as though it says, "Such [clears throat] state shall not impose or continue in effect any requirements for labeling or packaging." Period. And it this says, "In addition to or different." which suggests that there could be a parallel state uh enforcement proceeding happening. Well, I guess I would answer by saying only a completely parallel regime. So, if they want to say that, you know, if if my client omits something that EPA has said must be on the label, and somebody gets hurt because that warning's not on the label, then you can have a tort claim uh that's a failure to warn claim that basically is a negligence per se claim at that level of generality that says, "You're liable because you didn't follow the federal requirement, and we are going to give you a state remedy." That's why it is in addition to or different from.

[00:04:26]It's not We're not striking those words from the statute. And the one thing I would say is if you read Bates carefully, at the end of the opinion on this point about tort suits can get information, there's a block quote from a court of appeals opinion. And if you actually read it carefully, what the court says by quoting that is these these tort suits could generate information, and then people could go and ask EPA to allow the registrant to change the label. So, even in Bates, there's a recognition that there is not this unilateral ability to change the label, at least with respect to uh safety and warnings. And I would say this is where my answer that you can still have design defect claims is important, cuz that could be part of the process where additional information is generated and ultimately brought to uh the uh the attention of the agency. This is This is a narrow, but critically important preemption clause. It focuses on label-based failure to warn claims, and that's exactly what this is and should be preempted. Thank you. Thank you, counsel.