ORDER DENYING MOTION TO DISMISS AND MOTION TO STAY
I.
Monsanto argues that Hardeman’s failure-to-warn claims are preempted by the Federal Insecticide, Fungicide, and Roden-ticide Act, which prohibits states from “imposing] ... any requirements for labeling or packaging in addition to or different from” the requirements in FIFRA itself. 7 U.S.C. § 136v(b). But Hardeman’s failure-to-warn claims based on Roundup’s labeling are not preempted, because “a state-law labeling requirement is not preempted by § 136v(b) if it is equivalent to, and fully consistent with, FIFRA’s mis-
A.
To the extent Hardeman’s failure-to-warn claims attack Roundup’s product labeling, they are consistent with FIFRA. FIFRA requires a pesticide label to “contain a warning or caution statement which may be necessary and if complied with ... is adequate to protect health and the environment.” 7 U.S.C. § 136(q)(1)(G); see also 40 C.F.R. § 156.60. California law, similarly, requires a manufacturer to warn either of any risk that is known or knowable (in strict liability), or at least those risks that “a reasonably prudent manufacturer would have known and warned about” (in negligence). Conte v. Wyeth, Inc.,
B.
Monsanto contends Hardeman’s failure-to-warn claims are nonetheless preempted because the EPA has approved Roundup’s product labels. But the EPA’s authority to enforce FIFRA does not prohibit private litigants from also enforcing that statute: the Supreme Court, rejecting an argument against “giv[ing] juries in 50 States the authority to give content to FIFRA’s misbranding prohibition,” Bates,
This result is consistent with the text of the FIFRA statute. Monsanto notes that “registration of a pesticide shall be prima facie evidence that the pesticide, its labeling and packaging comply with the registration provisions of’ FIFRA. 7 U.S.C. § 136a(f)(2). But “prima facie evidence” is not conclusive proof. And the preceding sentence in this same statutory provision provides that “[i]n no event shall registration of an article be construed as a defense for the commission of any offense under” FIFRA. Id. Of course, if the EPA’s approval of Roundup’s label had the force of law, it would preempt conflicting state-law enforcement of FIFRA. See Wyeth v. Levine,
This result is also consistent with the district court’s holding in Mirzaie v. Monsanto Co., No. 15-CV-04361-DDP, 2016 WL. 146421 (C.D.Cal. Jan. 12, 2016). There, the plaintiffs sought (among other things) injunctive relief forcing Monsanto to change the contents of its label. Complaint at 10, Mirzaie v. Monsanto Co., No. 15-cv-04361-DDP (C.D.Cal. June 9, 2015). According to the district court, “[t]he only question” in ruling on Monsanto’s motion to dismiss was “whether the injunctive relief Plaintiffs seek would constitute a requirement for labeling or packaging.” Mirzaie,
C.
Similarly, Monsanto contends that Hardeman’s failure-to-warn claims are preempted because the “EPA repeatedly has concluded that glyphosate is not a carcinogen.” But almost all of the findings Monsanto cites were made in regulations interpreting the Food, Drug, and Cosmetic Act—not FIFRA. FDCA regulations don’t “give content to FIFRA’s misbrand-ing standards,” Bates,
Monsanto does cite one document from the FIFRA context—a fact sheet discussing glyphosate’s re-registration as a pesticide, which notes the EPA’s 1991 classification of glyphosate as a “Group E oncogen” showing “evidence of non-carcinogenicity for humans.” But neither the fact sheet nor the underlying 1991 classification actually conflict with Harde-man’s complaint, because the classification “emphasized ... that designation of an agent in Group. E is based on the available evidence at the time of evaluation and should not be interpreted as a definitive conclusion that the agent will not be a carcinogen.” And even if the fact sheet or classification did conflict with Hardeman’s complaint, it’s not clear that either has the force of law, see Mead,
Monsanto’s last piece of evidence—online video of Congressional hearing testimony in which various speakers characterize the EPA’s position on glyphosate— probably isn’t subject to judicial notice, because it could reasonably be questioned whether the speakers are characterizing the EPA’s position accurately. But, even if it is, there’s no indication that the positions. discussed in the video involve an interpretation of FIFRA that has the force .of law.-
Monsanto next argues that, because Hardeman “alleges that both glyphosate and Roundup® are inherently and unavoidably dangerous,” he can’t proceed on his strict-liability design-defect claims. Monsanto bases this argument on comments j and k to section 402A of the Restatement (Second) of Torts.
Comment j doesn’t support Monsanto’s argument. That comment provides that, “[i]n order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning.” Restatement (Second) of Torts § 402A cmt. j (1965). This means that a plaintiff can bring failure-to-warn claims, but it doesn’t mean that a plaintiff can bring only failure-to-warn claims. Comment j also provides that “a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Id. But Hardeman alleges that Roundup did not bear the warning it should have, so he’s free to allege that Roundup was also “in defective condition” or “unreasonably dangerous.”
That leaves comment k. Comment k provides that, where a product is “quite incapable of being made safe for their intended and ordinary use ... [t]he seller ... is not to be held to strict liability.” Id. cmt. k. But there’s an important caveat: comment k only applies where products “are properly prepared and marketed, and proper warning is given.” Id. Once again, Harde-man alleges that Roundup was not properly prepared or marketed, and was not accompanied by proper warning, so—by its own terms—comment k doesn’t apply.
Moreover, even if comment k applied by its own terms, it seems unlikely the California courts would apply it here. The California Supreme Court limited its adoption of comment k to a narrow medical context: “because of the public interest in the development, availability, and reasonable price of drugs, the appropriate test for determining responsibility is the test stated in comment k.” Brown v. Superior Court,
III.
Monsanto’s motion to dismiss is denied. And because the Court has denied Monsanto’s motion to dismiss, Monsanto’s motion to stay discovery is also denied.
IT IS SO ORDERED.