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Segal McCambridge Shareholder Michael B. Sena's article "As Failure-To-Warn Preemption Wanes, Justices May Weigh In" has published in Law360. He discusses the longstanding legal defense of federal preemption in state failure-to-warn claims, particularly in strict liability tort cases. For over thirty years, courts have upheld federal preemption as a powerful defense, dismissing lawsuits over warning adequacy on products such as aerosol paints, cigarettes, medical devices, and pesticides. Preemption occurs when federal statutes, like the Federal Hazardous Substances Act (FHSA), prohibit state laws that differ from federal mandates. However, recent cases, such as Durnell v. Monsanto Co., signal a shift in this legal doctrine, with courts increasingly rejecting preemption and questioning its application.
Sena highlights key rulings, such as the 2021 Hardeman v. Monsanto Co. case, in which the Ninth Circuit ruled that failure-to-warn claims against Roundup were not preempted by federal law. The court reasoned that federal and state labeling requirements did not conflict, allowing state law claims to proceed. "A broad reading of Hardeman calls the entire doctrine of federal preemption into question," says Sena, indicating that the outcome may alter how preemption is viewed in future product liability cases. This trend could challenge the traditional application of preemption, especially concerning products governed by federal agencies like the EPA and CPSC.
With recent decisions diverging between circuits, Sena argues that the U.S. Supreme Court must step in to clarify the scope of preemption in failure-to-warn claims. The Court’s intervention will be crucial in ensuring uniformity and providing clear guidance on how state tort laws should interact with federal regulations, particularly in high-stakes cases involving public health and safety. Click here to read more (subscriber based).
