In oral arguments, lawyers press SCOTUS over landmark glyphosate lawsuit

In February of last year, the Missouri Court of Appeals allowed a $1.25 million award to stand in one of the nation’s most prominent glyphosate-related lawsuits against Monsanto. That case centered around plaintiff John Durnell’s claim in 2019 that he developed non-Hodgkin’s lymphoma after years of using the herbicide Roundup. 

Today, the U.S. Supreme Court heard oral arguments in Monsanto v. Durnell in what is expected to become one of the most landmark agricultural decisions in American history. And it will go a long way toward future decisions in the tens of thousands of cases Monsanto’s new owner, Bayer, is facing related to Roundup’s active ingredient, glyphosate.

The case going before SCOTUS centers on whether federal pesticide law preempts state law failure-to-warn claims. Similar preemption language to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is included in other federal statutes such as those regulating medical devices, poultry products, meat, and motor vehicles. Bayer argues that it should applies here as well, with U.S. Solicitor General John Sauer saying that federal scientific findings should not be second-guessed at the state level.

“The agency has repeatedly approved Roundup labels that did not contain cancer warnings,” Sauer said in an amicus brief filed to the Supreme Court in December. “Where, as here, EPA has specified the health warnings that should appear on a particular pesticide’s label, a manufacturer should not be left subject” to states each prescribing different labeling requirements.

The U.S. Environmental Protection Agency and every other regulator worldwide that has independently assessed the safety of glyphosate has concluded it can be used safely.

Early in the oral arguments, which began around noon Eastern Time on Monday, a Monsanto lawyer focused on who is most responsive to labeling requirements and who carries the biggest onus for current information.

“A registered product that is marketed as labeled and approved by the [EPA] is not misbranded,” Paul Clement told the justices. He went on to strongly argue that states would not be legally allowed under FIFRA to change the label on a crop protection product.

One of the justices then pressed the issue that some companies have added cancer warnings to labels even when not directed by the EPA.

“You as a registrant can’t change the label legally. Full stop,” the lawyer said, attempting to draw a distinction between a state’s directive and what a manufacturer might be able to do. The focus heavily steered into the concept of “misbranding.”

The justices and the Monsanto lawyer also talked about the processes of incorporating new scientific findings into registrations, with the lawyer arguing that new science that undermines a product should not create retroactive penalties and that it requires a cancellation of registration, not a state-level relabeling.

Another lawyer addressing the justices added, “States can do things that add additional penalties, as Mr. Clement said, but what they can’t do is second-guess or undermine this [labeling] process.” She noted that states making changes to the label would impacts the uniformity of the process.

A justice, however, countered with the question: Based on new science, what if the changes to the label are right and they may supersede the scientific understanding at the time of federal registration?

Like Clements, this second lawyer spoke of the avenue of suing to cancel the product as the appropriate manner in which concerns over new science should be rightly addressed. She also said that states are allowed to ban the use of a product, but that doesn’t impact labeling or tort litigation.

“What FIFRA doesn’t allow is throwing the expressed pre-emption clause out the window and that states are perfectly fine having a free-for-all,” she said. “Again, FIFRA is designed to guard against both sides of the risk.”

Ashley Conrad Keller, who represents Durnell, then spoke to justices, affirming the value of the jury’s original finding in Missouri.

He went on to challenge many of Clement’s points, including referring to Clement as even having a “tortured reading” of a piece of the regulatory text.

Keller said he supported uniformity, but as a matter of uniformity of state law aligning with federal law, while arguing that there is no requirement that juries interpret and make decisions in a uniform manner, which he said allows for the ruling in favor of his client in the lower courts.

“That’s the consequence of our civil jury system,” he said. 

When a justice asked Keller if changing the label based on a Missouri requirement, that would then differ from the federal requirement, is allowable, Keller responded, “Here, it requires parallelism. It can’t be in addition to or different from. So they have to be the same.

“I don’t think the statute prohibits a label change” at the state level, he added, specifically noting that the U.S. Solicitor General has read the law incorrectly. “The United States is wrong about that.”

Monsanto/Bayer has the support of numerous farm advocates across the U.S. in this case. As recently as last month, Farm Bureau organizations in California, Florida, Indiana, Kansas, Missouri, Ohio, Oklahoma, Oregon, North Carolina, Tennessee, Texas, and Virginia signed an amicus brief before SCOTUS to support access to essential crop protection tools, like Roundup. In it, they noted that glyphosate enables farmers to control weeds effectively, conserve soil through reduced tillage, lower fuel use, and produce safe, affordable food.

Elizabeth Burns-Thompson, executive director of the Modern Ag Alliance, lamented in a call on Friday that much of the public discussion surrounding how glyphosate is used has lacked direct input from producers.

“What we have found that is missing in a lot of this conversation is the voice of the farmers,” she said, referring to those “that are utilizing, that depend on these tools.”

Blake Hurst, a northwest Missouri farmer with nearly 50 years of experience, said glyphosate is central to how farms operate today.

“Costs are up. Our supply chains have been disrupted. Margins are tight. That really doesn’t catch it — margins are negative,” he said. Farmers are “having to cut back on the things we do … and some of us are having to take more debt on just to stay in business.”

He warned that losing glyphosate would worsen those challenges.

“Losing access to crop protection chemicals like glyphosate would be a terrible blow, a disastrous blow for farmers,” he said. Increased costs, he added, would eventually reach consumers: “That’ll eventually show up on food prices and grocery store shelves.”

Jury verdicts in recent years related to glyphosate have been mixed, with 13 verdicts for Bayer and 11 for plaintiffs, including a $2.1 billion award by a Georgia jury. Many other claims have been resolved through separate settlements. In February, President Donald Trump issued an executive order prioritizing U.S. production of glyphosate, citing the herbicide’s critical use to national security.

The hope for Bayer is to contain the Roundup litigation by the end of this year.

In regards to Monsanto v. Durnell, “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 AG CEO Bill Anderson has said previously.

The Supreme Court’s decision is expected by early July.

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