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\u2019s 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.<\/p>\n
The case is not a neatly partisan issue. A few hundred protesters opposed to Bayer gathered outside the court for what they called a \u201cPeople vs. Poison\u201d rally. The group included prominent Make America Healthy Again activists and influencers as well as environmentalists, farmers, and members of Congress from both parties.<\/p>\n
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\u2019s side about whether the Supreme Court\u2019s 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.<\/p>\n
Arguing over the Federal Insecticide, Fungicide, and Rodenticide Act<\/p>\n
Attorneys for both sides presented arguments largely laid out in their written briefs<\/a>.<\/p>\n 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.<\/p>\n Clement further argued that Durnell\u2019s claim \u201cis preempted twice over.\u201d First, he argued, the claim is \u201cexpressly\u201d preempted in the text of FIFRA<\/a>, which says that states \u201cshall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.\u201d Second, he argued, the claim is \u201cimpliedly\u201d preempted because it would be impossible for Bayer to comply both with the Missouri jury\u2019s cancer warning requirement and with the EPA\u2019s approved label without a cancer warning.<\/p>\n Current Principal Deputy Solicitor General Sarah Harris, representing the US government, also argued before the court in support of Bayer\u2019s position. \u201cThe states can do things that add additional penalties,\u201d she said, but they can\u2019t \u201csecond-guess or undermine\u201d the EPA\u2019s pesticide registration process.<\/p>\n 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.<\/p>\n On the plaintiff\u2019s side, Ashley Keller, a product-liability attorney at Keller Postman, argued that a pesticide can be \u201cmisbranded\u201d according to FIFRA if it doesn\u2019t include necessary warnings, even if the pesticide\u2019s label was approved by the EPA during registration. Keller also said that after the Loper-Bright decision, courts now require more\u00a0evidence directly from the text of federal laws than Bayer has presented.<\/p>\n Keller further argued that while the original Missouri jury decision diverged from the EPA\u2019s registration decision for glyphosate, it did not diverge from FIFRA. \u201cThere is nothing in, by, under, or next to FIFRA that makes the registration decisions that EPA makes binding labeling requirements with preemptive force,\u201d he said.<\/p>\n 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.<\/p>\n A \u2018flood\u2019 of glyphosate lawsuits<\/p>\n Durnell\u2019s 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.<\/p>\n 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.<\/p>\n Bayer has deployed a multipronged effort to contain the litigation. In February, the company proposed a $7.25 billion class settlement<\/a> 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.<\/p>\n CropLife America, a trade group representing pesticide manufacturers, highlighted the potential economic implications of the Roundup litigation in an amicus\u00a0brief (PDF)<\/a> supporting Bayer. \u201cThe threat of such immense liability multiplied across the many pending cases could easily drive an economically vital product off the market,\u201d it said.<\/p>\n According to Bayer, plaintiffs began filing this \u201cflood of lawsuits\u201d after the World Health Organization\u2019s International Agency for Research on Cancer (IARC) classified glyphosate as \u201cprobably carcinogenic to humans\u201d in 2015<\/a>.<\/p>\n 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\u00a0to redo its assessment<\/a> of glyphosate\u2019s safety, and the agency is currently conducting that reassessment.<\/p>\n 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.<\/p>\n In a written statement about the case, the company says that the EPA \u201chas exhaustively studied glyphosate and repeatedly concluded that it does not warrant a cancer warning.\u201d<\/p>\n Pesticide labels on the line<\/p>\n The Supreme Court already narrowed the scope of the question Bayer wanted considered in the case, but the justices\u2019 ultimate opinion \u201ccould be more broad, more wide-sweeping,\u201d says Brent Wisner, a\u00a0plaintiffs’ attorney and partner at Wisner Baum who won the first US jury verdict for a Roundup-related cancer claim in 2018. \u201cIt could be more tailored. It could play out in a million ways.\u201d<\/p>\n If the court does answer the relatively narrow question on labeling as presented, a decision in Bayer\u2019s favor \u201cwould essentially make labeling failure-to-warn claims no longer viable,\u201d Wisner says. A decision in Durnell\u2019s favor would mean that \u201cnothing changes,\u201d he says. \u201cWe\u2019re back to where we are currently,\u201d with state juries free to hold pesticide manufacturers liable for not putting warning labels on their products.<\/p>\n 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\u2019s registration entirely. If the court decides in Bayer\u2019s 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.<\/p>\n \u201cIf 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,\u201d she says. \u201cIt does make me wonder if maybe that is something we would see more of in the future.\u201d<\/p>\n The justices are expected to issue an opinion on the case before the end of their current term in June.<\/p>\n
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