Who has the legal authority for determining certain product labeling requirements? That is an important question retailers want the U.S. Supreme Court to decide this term given the thousands of products retailers sell throughout the country that are governed by federal labeling requirements.
The Retail Litigation Center (RLC) filed an amicus brief yesterday urging the High Court to step in and overturn a Ninth Circuit decision that removed this authority from scientific experts and handed it over to a lay jury. Former U.S. Solicitor General Don Verrilli, Mark Yohalem and their team at Munger Tolles served as counsel to the RLC on the brief.
“Recognizing the importance to consumers of uniform labeling for large swaths of products, Congress enacted legislation giving oversight to federal agency scientists to set a single label for each product, regardless of where the product is ultimately sold. The Ninth Circuit’s decision to ignore federal law is worse than the 50 different state labeling regimes that Congress sought to preempt when it enacted federal labeling legislation; under the scheme established by the Ninth Circuit, there will be as many different labeling regimes as there are lawsuits and juries to hear them. This result is confusing for customers and untenable for retailers,” said Deborah White, RLC President.
As the RLC’s brief states, the Ninth Circuit’s decision in this case takes the question of how to label a product governed by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from federal regulators and their staff of scientists, and hands it to “whichever expert witness best charms or terrifies the jury in a given case.”
The RLC’s members sell a vast array of products—from pesticides and pool products to pet foods and prescription drugs—regulated by the federal government. Whether retailers large and small can rely upon the federal government’s labeling determinations, or whether they must instead second-guess those determinations based on the risk of state-law claims insisting on contradictory labeling, is an issue of significant importance to retailers and consumers.
“The Ninth Circuit’s ruling is a major concern to retailers who rely on uniform labeling laws for the products that they sell,” said White. “Retailers urge the Court to take this case, reverse the Ninth Circuit’s decision, and restore consistency and scientific rigor to product labeling governed by FIFRA and other federal laws.”
The case is Monsanto Company v. Hardeman. See the RLC brief here.
Retail Litigation Center
Directed by the chief legal officers of the country's leading retail companies, the Retail Litigation Center (RLC) is the only organization dedicated to advocating for the industry's top priorities in the federal and state judiciary. The RLC also works with leading law firms and retail corporate counsel to develop forward-thinking strategies to combat meritless mass action litigation. Founded by the Retail Industry Leaders Association (RILA) in 2010 as an independent organization, the RLC is a 501(c)(6) membership association open to all retailers and select law firms.
Retail Litigation Center