The Supreme Court is poised to decide whether to take up a case involving
weedkillers and cancer that could effectively curtail one of the largest waves of tort
litigation in American history.
The case involves Bayer, the German conglomerate that acquired the pesticide
manufacturer Monsanto in 2018. Bayer is petitioning the court for a definitive
ruling on whether federal law shields the company from thousands of lawsuits
claiming that its widely-used weedkiller Roundup causes cancer.
The Trump administration has thrown its support behind Bayer, reversing a
position taken by President Biden. But the issue has raised the ire of an
extraordinary coalition of lawmakers on both sides of the aisle, environmental
groups, and Republican-aligned Make America Healthy Again activists who say
that Bayer is seeking corporate immunity at the expense of public health.
“This transcends politics,” said Chellie Pingree, a Democratic congresswoman
from Maine who helped to defeat a separate measure, a provision in a House
spending bill, that could have shielded Bayer from lawsuits. “It’s all about peopleworrying about their own health, their children’s health,” she said, “and there’s a
deep suspicion that corporations care more about profits.”
Now, the broad coalition is asking why the Trump administration is siding with a
pesticides maker over American plaintiffs. The justices are scheduled to consider
the matter in their closed-door conference on Friday. They could announce their
decision as early as Monday, though they could also weigh the issue several times
before a public announcement.
“It would be the most unpopular decision made by any Supreme Court if they ruled
in favor of Bayer,” said Vani Hari, an activist and author known to her millions of
social media followers as the Food Babe. Ms. Hari is also a key figure in Health
Secretary Robert F. Kennedy Jr.’s Make America Healthy Again movement.
“Nobody wants to be poisoned,” she said.
In a statement, Bayer’s chief executive, Bill Anderson, expressed thanks for the
support of the U.S. government, calling it “an important step.” He added, “The
stakes could not be higher as the misapplication of federal law jeopardizes the
availability of innovative tools for farmers and investments in the broader U.S.
economy.”
Bayer’s Supreme Court petition is the latest chapter in a yearslong controversy
over Roundup, developed by Monsanto in the 1970s as a revolutionary weedkiller.
Formulated to be paired with genetically modified seeds, the pesticide allows GMO
crops to grow unimpeded while killing most weeds. It has become the best-selling
weedkiller in the world and a cornerstone of American food production.
The American Farm Bureau Federation said in a filing with the Supreme Court that
glyphosate, Roundup’s active ingredient, was used on roughly 300 million acres of
farmland growing cotton, soybeans, sugar beets and more. It warned that without
glyphosate, food yields would “drop precipitously.”
But a growing body of evidence in lab animals, and more limited evidence in
humans, has indicated a link to cancer, including non-Hodgkin lymphoma, as well
as harm to biodiversity. In 2015, the World Health Organization’s International Agency for Research on Cancer found that the herbicide was “probably
carcinogenic."
Still, the Environmental Protection Agency does not classify glyphosate as a
carcinogen and has repeatedly approved Roundup’s product labeling, which
doesn’t carry a cancer warning. A handful of states, however, set stricter rules on
how and where Roundup is used, and California has challenged federal labeling
standards.
Against that backdrop, thousands of lawsuits, farm workers, landscapers, home
gardeners and others have argued that, under state laws, Bayer should have
notified consumers of potential cancer risks by affixing warning labels to Roundup
bottles and drums. Bayer has paid out more than $10 billion to settle approximately
100,000 Roundup claims, and faces thousands more.
Bayer has countered that because the E.P.A. does not classify glyphosate as a
carcinogen, and has repeatedly approved Roundup’s label without a cancer
warning, it would not be feasible for the company to add one. Federal pesticide
policies pre-empt any state-imposed obligations to warn consumers of cancer risks,
Bayer has argued.
For years, courts ruled against Monsanto, asserting that the E.P.A.’s approval is
just a “minimum standard” and does not stop states from requiring additional
protections.
But in 2024, a federal court in Pennsylvania ruled differently, saying that for Bayer
to satisfy the state law, it would have to do something that federal law literally does
not allow it to do. The company now argues that there is a split among courts that
only the nation’s highest court can resolve.
The case that Bayer has petitioned the Supreme Court take on to resolve the
situation is Monsanto Co. v. Durnell, No. 24-1068, brought by John Durnell, a
resident of St. Louis and an avid gardener who used Roundup for decades. Mr.
Durnell eventually received a diagnosis of non-Hodgkin lymphoma and sued
Monsanto in 2019, alleging that his illness was a direct result of chronic exposure to
Roundup and that Monsanto had failed to warn of the cancer risks.
Monsanto had said that it should not be sued for failing to warn because federal
law does not allow it to.
Lawrence S. Ebner, a prominent lawyer with the Atlantic Legal Foundation, a
public interest law firm backed by conservative funders and a leading advocate for
Bayer, has called the current wave of Roundup lawsuits a “product liability
bonanza” driven by trial lawyers. In the foundation’s amicus brief to the court, it
argues that “lay jurors” should not decide scientific safety over E.P.A. experts.
“The most important fact is that the E.P.A. does not require a cancer warning,” he
said. “Only the E.P.A. can regulate the content of pesticide labeling, and states
cannot impose their own different or additional requirements for labeling,” Mr.Ebner said. “This not only affects thousands of pending Roundup cases, but other
cases involving pesticides.”
The case could pit some major players in the Trump orbit against each other.
As a young lawyer, Associate Justice Clarence Thomas spent nearly three years
working for Monsanto, his only experience in the private sector. Later, as a Senate
aide, Mr. Thomas lobbied his boss on behalf of corporate interests, including those
of Monsanto, the legal scholar Scott W. Stern wrote in a 2022 paper.
At the same time, Associate Justice Thomas has expressed skepticism of the pre-emption defenses that Monsanto had asserted.
Then there is Mr. Kennedy, who for decades assailed glyphosate as a threat to the
soil and water, and who worked closely with the lead law firm handling lawsuits on
behalf of people who became ill after glyphosate exposure.
Representative Thomas Massie, a libertarian-leaning lawmaker from Kentucky,
asked Thursday, on social media: Why has the Department of Justice, under
Attorney General Pam Bondi, “sided” with the German company Bayer?
The timing of the case is particularly significant. Last month, a scientific journal
retracted a widely cited paper that had reviewed available evidence and declared
glyphosate safe. The journal pointed to email messages, made public in connection
with litigation, that appeared to show that Monsanto scientists had guided the
research.
George Kimbrell, an executive director at the Center for Food Safety, a health
advocacy group, said the retraction had added to concerns that the E.P.A.’s
conclusions were based on manipulated science and should not be used as a legal
shield. The Environmental Protection Agency still considers the herbicide to be
safe. But the federal government faces a deadline in 2026 to re-examine the safety
of glyphosate.
“It’s important that there be other ways to regulate these products, other than all
of us risking irreparable harm to our health and to the environment on E.P.A.
determinations,” Mr. Kimbrell said.
R. Brent Wisner, a plaintiff lawyer who played a key role in bringing the emails to
light, said litigation was also important because it helped expose vital internal
evidence and corporate influence on science that might otherwise remain hidden.
But if the Supreme Court were to take up the current case, and rule in favor of
Bayer, it could lead to the dismissal of many of the tens of thousands of active
Roundup cases.
It would make pesticide manufacturers “a special class of corporations in our
society that receive special treatment,” Mr. Wisner said.
Republicans in Congress, meanwhile, have vowed to bring back a measure to
shield Bayer in the 2026 Farm Bill, and industry groups have successfully lobbied
for immunity laws in states such as North Dakota and Georgia.
Leslie A. Brueckner, an appellate attorney and expert on federal pre-emption, said
the Supreme Court’s decision loomed large for the tort system overall; whether it
could continue to play an overarching role in protecting the public from hazardous
products, because regulatory approval could sometimes be based on limited
science.
“It’s just incredibly important,” Ms. Brueckner said. “The stakes are very high.”
