[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-10994 ____________________

JOHN D. CARSON, Plaintiff-Appellant, versus MONSANTO COMPANY,

Defendant-Appellee.

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Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:17-cv-00237-RSB-CLR ____________________ USCA11 Case: 21-10994 Document: 178-1 Date Filed: 02/05/2024 Page: 2 of 31

2 Opinion of the Court 21-10994

Before ROSENBAUM, TJOFLAT, Circuit Judges, and MOODY,∗ District Judge. ROSENBAUM, Circuit Judge: State tort litigation plays an important role in protecting consumers from dangerous products. But the federal government, through legislation and regulation, exercises its own authority over those products. And when the two conflict, federal law is supreme. This case requires us to decide whether the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preempts a state failure- to-warn tort claim. Plaintiff-Appellant John D. Carson, Sr., used the popular weedkiller Roundup for decades before he developed cancer. Car- son alleges that Roundup caused his cancer and sued Monsanto (Roundup’s manufacturer) for failure to warn of the product’s can- cerous effects, among other claims. Monsanto moved for judg- ment on the pleadings based on FIFRA’s preemption provision, 7 U.S.C. § 136v(b). Specifically, Monsanto argued that FIFRA preempted Carson’s state-law claims because the Environmental Protection Agency (“Agency”) approved Roundup’s label without a cancer warning and classified Roundup’s main ingredient as “not likely to be carcinogenic.” The district court agreed and found that FIFRA preempted Carson’s claims regarding Roundup’s packaging or labeling. We

∗ The Honorable James S. Moody Jr., U.S. District Judge for the Middle Dis- trict of Florida, sitting by designation. USCA11 Case: 21-10994 Document: 178-1 Date Filed: 02/05/2024 Page: 3 of 31

21-10994 Opinion of the Court 3

reversed the district court’s dismissal of Carson’s failure-to-warn claim. But sitting en banc, this Court vacated the opinion and clar- ified the relevant express-preemption inquiry. Now, on remand, we reconsider whether Carson’s failure-to-warn claim is preempted, either expressly or impliedly. We conclude that FIFRA does not expressly preempt Car- son’s failure-to-warn claim. FIFRA’s preemption provision applies to only those state requirements that are “in addition to or different from” federal requirements. And Georgia common law does not impose duties “in addition to or different from” FIFRA’s require- ments; rather, Georgia common law is less demanding than the federal requirements. We also conclude that implied preemption does not bar Car- son’s failure-to-warn claim. Monsanto has not met its burden to show that, in an action that carried the force of law, the Agency would not have approved the warning label that Carson proposes. So Monsanto has not established that it could not have complied with both state and