The US Supreme Court heard oral arguments Monday in a case centered on whether companies can be liable under state law for failing to warn of a pesticide’s potential dangers if the federal government does not require such a warning.
The case, Monsanto v. Durnell, stems from a lawsuit filed by gardener John Durnell in 2019 in Missouri state court alleging that he had developed a type of cancer called non-Hodgkin lymphoma because of decades of exposure to the company’s glyphosate-based weedkiller Roundup and that the company should have warned him of that risk. Bayer bought Monsanto in 2018 and assumed all its liabilities.
The case is not a neatly partisan issue. A few hundred protesters opposed to Bayer gathered outside the court for what they called a “People vs. Poison” rally. The group included prominent Make America Healthy Again activists and influencers as well as environmentalists, farmers, and members of Congress from both parties.
Some of the justices also converged across ideological lines in their questioning. John Roberts and Neil Gorsuch joined Ketanji Brown Jackson in pushing against Bayer on the idea that states cannot go after pesticide manufacturers in the same way the EPA can. And Elena Kagan joined Samuel Alito in questioning Durnell’s side about whether the Supreme Court’s 2024 Loper-Bright v. Raimondo decision, which overturned the practice of deferring to federal agency interpretations of ambiguous statutes, is truly relevant to this case.
Arguing over the Federal Insecticide, Fungicide, and Rodenticide Act
Attorneys for both sides presented arguments largely laid out in their written briefs.
Paul Clement, a former solicitor general in the George W. Bush administration who represented Bayer, argued that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts states from requiring warning labels on pesticides that diverge from the product labels approved by the EPA during the pesticide registration process.
Clement further argued that Durnell’s claim “is preempted twice over.” First, he argued, the claim is “expressly” preempted in the text of FIFRA, which says that states “shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” Second, he argued, the claim is “impliedly” preempted because it would be impossible for Bayer to comply both with the Missouri jury’s cancer warning requirement and with the EPA’s approved label without a cancer warning.
Current Principal Deputy Solicitor General Sarah Harris, representing the US government, also argued before the court in support of Bayer’s position. “The states can do things that add additional penalties,” she said, but they can’t “second-guess or undermine” the EPA’s pesticide registration process.
Business and industry groups have filed amicus briefs supporting Bayer. So have Nebraska, Iowa, and even Missouri, where the case originated, along with 12 other mostly red states.
On the plaintiff’s side, Ashley Keller, a product-liability attorney at Keller Postman, argued that a pesticide can be “misbranded” according to FIFRA if it doesn’t include necessary warnings, even if the pesticide’s label was approved by the EPA during registration. Keller also said that after the Loper-Bright decision, courts now require more evidence directly from the text of federal laws than Bayer has presented.
Keller further argued that while the original Missouri jury decision diverged from the EPA’s registration decision for glyphosate, it did not diverge from FIFRA. “There is nothing in, by, under, or next to FIFRA that makes the registration decisions that EPA makes binding labeling requirements with preemptive force,” he said.
Environmental health, consumer, and farmworker advocacy organizations filed amicus briefs supporting Durnell, as did a group of former EPA officials. Two separate groups of states also filed amicus briefs supporting him: New Mexico and 17 other mostly blue states wrote one and Texas, Florida, and Ohio wrote another.
A ‘flood’ of glyphosate lawsuits
Durnell’s case is one of more than 100,000 in the US seeking to hold Bayer liable under state laws for failing to warn of alleged cancer risks from Roundup exposure.
Many of the claims came from people who used Roundup around their homes, and Bayer has removed glyphosate from the consumer versions. But the commercial agriculture versions still contain glyphosate, which is the most common agricultural herbicide in the US and is used on most corn, cotton, soybean, and sugar beets.
Bayer has deployed a multipronged effort to contain the litigation. In February, the company proposed a $7.25 billion class settlement that would include most of these claims. Shortly afterward, President Donald J. Trump signed an executive order promoting domestic production of elemental phosphorus and glyphosate-based herbicides. Members of Congress now seek to pass a farm bill that includes a provision mandating uniform pesticide labels nationwide.
CropLife America, a trade group representing pesticide manufacturers, highlighted the potential economic implications of the Roundup litigation in an amicus brief (PDF) supporting Bayer. “The threat of such immense liability multiplied across the many pending cases could easily drive an economically vital product off the market,” it said.
According to Bayer, plaintiffs began filing this “flood of lawsuits” after the World Health Organization’s International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic to humans” in 2015.
The EPA and comparable regulatory agencies in the European Union and other countries so far disagree. But in 2022 the US Court of Appeals for the Ninth Circuit ordered the EPA to redo its assessment of glyphosate’s safety, and the agency is currently conducting that reassessment.
In the Durnell case, the jury in the original Missouri state court sided with IARC and Durnell, awarding $1.25 million in compensatory damages. Bayer appealed, and the case eventually made its way to the Supreme Court.
In a written statement about the case, the company says that the EPA “has exhaustively studied glyphosate and repeatedly concluded that it does not warrant a cancer warning.”
Pesticide labels on the line
The Supreme Court already narrowed the scope of the question Bayer wanted considered in the case, but the justices’ ultimate opinion “could be more broad, more wide-sweeping,” says Brent Wisner, a plaintiffs' attorney and partner at Wisner Baum who won the first US jury verdict for a Roundup-related cancer claim in 2018. “It could be more tailored. It could play out in a million ways.”
If the court does answer the relatively narrow question on labeling as presented, a decision in Bayer’s favor “would essentially make labeling failure-to-warn claims no longer viable,” Wisner says. A decision in Durnell’s favor would mean that “nothing changes,” he says. “We’re back to where we are currently,” with state juries free to hold pesticide manufacturers liable for not putting warning labels on their products.
During oral arguments, the attorneys representing Bayer and the US government repeatedly brought up an alternative to lawsuits in state courts: petitioning the EPA to cancel a pesticide’s registration entirely. If the court decides in Bayer’s favor, Brigit Rollins, a staff attorney with the National Agricultural Law Center, says she will be curious to see if more people start petitioning the EPA in this way.
“If the court rules in favor of Bayer here, it does seem like this cancellation of a pesticide is sort of coming up as another route for plaintiffs like Durnell to express concern over pesticide safety,” she says. “It does make me wonder if maybe that is something we would see more of in the future.”
The justices are expected to issue an opinion on the case before the end of their current term in June.
