Dennis Raglin Quoted in Daily Journal: “Roundup Ruling Fuels Fears of Broader Shield for Manufacturers”

Dennis Raglin was quoted in a Daily Journal article titled “Roundup Ruling Fuels Fears of Broader Shield for Manufacturers.” The article discusses the recent U.S. Supreme Court’s decision shielding Bayer from certain Roundup failure-to-warn claims, which plaintiffs’ lawyers say could strengthen federal preemption defenses and threaten California’s Proposition 65 warning regime.

Raglin said the decision is likely to have significant implications beyond glyphosate because it reinforces federal preemption arguments for chemicals regulated by agencies such as the U.S. Environmental Protection Agency. “I think there are some Prop 65 chemicals regulated by federal agencies, particularly EPA, that could be vulnerable to a Monsanto preemption challenge,” Raglin said.

He noted the Supreme Court’s decision follows a series of recent federal court victories in which judges barred enforcement of Proposition 65 warning requirements for chemicals, including acrylamide, titanium dioxide, cocamide DEA, and glyphosate, concluding that the required warnings violated companies’ First Amendment rights because they were not purely factual or uncontroversial. Taken together, Raglin said, those rulings could encourage defendants to challenge Proposition 65 claims on both preemption and constitutional grounds.

“Glyphosate is an example of a Prop 65 chemical being unenforceable on two constitutional grounds,” he said. “This would give defendants two separate grounds to challenge and force plaintiffs to overcome two strong defenses.”

Raglin added that the decision could embolden California state courts to more readily entertain preemption arguments, an area where they have historically been reluctant to intervene. “It is logical to expect challenges to other Proposition 65-listed chemicals that are also regulated by federal agencies,” he said, pointing to bisphenol S (BPS) as one example because it is regulated by both the EPA and the Food and Drug Administration.

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