The Supreme Court appeared split Monday over whether to allow lawsuits against Bayer for not including a warning label about cancer risks on its Roundup weedkiller to proceed, as the company and the Justice Department argued that federal law preempts state labeling laws for herbicides and pesticides.
The justices heard arguments in Monsanto v. Durnell over whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a “failure-to-warn” about labels if the Environmental Protection Agency did not require a warning. A “failure-to-warn” is when a company fails to disclose that a product poses some type of significant hidden danger, such as by containing chemicals linked to cancer, in violation of the law.
The plaintiff in the case, John Durnell, alleges that his cancer was triggered by glyphosate exposure. A jury in 2019 in Missouri awarded $1.25 million in damages to Durnell, citing the failure of Monsanto, which makes Roundup and whose parent company is Bayer, to warn its consumers about the cancer risk. A Missouri appellate court sided with Durnell, and the state Supreme Court declined to take up Monsanto’s second appeal, prompting federal involvement.
Glyphosate, a non-selective herbicide, is the most common weedkiller in the United States, with roughly 280 million pounds of glyphosate being sprayed onto nearly 300 million acres of farmland annually, according to the EPA. Although Roundup is most commonly known as a household product, it is used in agriculture as a desiccant, a chemical sprayed on crops to effectively kill them to make harvesting easier.
A working group of the International Agency for Research on Cancer from the World Health Organization classified glyphosate as “probably carcinogenic to humans” in 2015, sparking billions of dollars of civil litigation against Monsanto in the decade since.
Much of the arguments Monday morning before the high court focused on the specific wording in the FIFRA, which Bayer and the DOJ say gives the EPA the final authority on labeling requirements for pesticides under its jurisdiction.
The company pointed to the clause that says a “state shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under” federal law.
Paul Clement, representing Monsanto, said the word “under” in the statute is key to its argument, specifically how it acts as a preemption to laws enacted by states regarding herbicides. Bayer argues that FIFRA gives the EPA final authority over registering a product, meaning that it is approved as safe before getting the green light to be marketed.
“But the language of FIFRA’s preemption provision, just like the language of the preemption provision for the medical device amendments that were at issue in the Riegel case, both of those uses the word ‘under,’ and I think that word textually captures the various requirements that are imposed at a device-specific level or a herbicide-specific level in the context of the registration process here,” Clement argued, referring to Supreme Court 2008 ruling Riegel v. Medtronic, which found a similar federal preemption for medical devices.
Ashley Keller, representing Durnell, argued that, although the statute is phrased similarly to the one at the center of the Riegel case, it does not mean it preempts state labeling laws.
“We agree, we’re good textualists,” Keller said. “We don’t ignore prepositions, and we agree there are affirmative delegations of authority to the administrator to issue regulations that create labeling requirements.”
“Monsanto’s problem is they’re not relying on any of those regulations. They are relying on registration and registration alone. There is nothing in, by, under, or next to FIFRA that makes the registration decisions that EPA makes binding labeling requirements with preemptive force,” she added.
Kavanaugh sympathetic to Bayer
Justice Brett Kavanaugh seemed the most sympathetic to Bayer during his questioning.
Kavanaugh asked Clement whether Bayer can be held liable for misbranding its product after new information has come to light about its risks.
“I think you’re saying that EPA can change requirements going forward, but if it tries to say you were misbranding when you did what they told you, that’s a retroactivity problem of sorts, in the sense that they’re penalizing you retroactively for something that is now required,” he said.
Kavanaugh also intensely probed Keller’s argument on behalf of Durnell, questioning whether having different regulatory regimes based upon the state violated the principle of uniformity of the laws between the federal and state governments.
“Under federal law, if they do a different label than what EPA has approved, would they be violating federal law?” Kavanaugh asked.
Keller said that federal supremacy requires “uniformity in the law” rather than uniformity in product labeling.
“The law of Missouri and the law of the United States have to be the same. … It does not require fact finders to find the facts the same way,” said Keller, adding that different juries in different jurisdictions can rightfully come to two different conclusions.
During his closing, Clement said such a regime would be impossible.
“On uniformity, it’s worse than 50 states. It’s every jury is a new day,” said Clement.
Jackson skeptical of the review process
Justice Ketanji Brown Jackson appeared to be the most dubious of Bayer’s argument, pressing Clement on his client’s position.
Jackson questioned Clement at length as to whether registration and branding ought to be considered two separate issues.
Multiple other justices, including Neil Gorsuch and Amy Coney Barrett, followed suit, as Clement offered conflicting answers.
Jackson also scrutinized whether the EPA’s review process for registering a product as safe is sufficient to justify not changing package labeling as new evidence emerges.
“There’s a 15-year window between when that product has to be registered again, and lots of things can happen in science in terms of development of the product,” said Jackson.
Keller, on behalf of Durnell, argued that a product can still be mislabeled even if the reviewing agency has not conducted a new review.
He referenced the Food and Drug Administration’s process, citing that drugs can be misbranded even if they are certified by the agency after new data is presented. Keller said that FDA gets “a lot more rigorous, upfront data” and does more label changes than EPA.
“The FDA agrees that post-NDA application, post-approval, you can still have a misbranded drug,” Keller said. “It shouldn’t be less protective of consumers under the context of FIFRA, where the EPA is operating, with less information on those points.”
FUTURE OF MAHA IN THE BALANCE AS SUPREME COURT HEARS ROUNDUP CASE
The Supreme Court is expected to issue a ruling in Monsanto v. Durnell by the end of June, when the justices are expected to wrap up their current term.
If the justices rule in favor of Bayer, the issue could have significant consequences for the Make America Healthy Again movement and the 2026 midterm elections this November.
A Politico poll from early April found that nearly 7 in 10 people support greater restrictions on pesticide use.