The U.S. Supreme Court on April 27 grappled with Monsanto’s appeal that asks it to block thousands of lawsuits that allege that the company failed to warn consumers that Roundup, its popular weedkiller, could cause cancer.
A state-level jury previously ruled in favor of John Durnell, a Missouri man who developed non-Hodgkin lymphoma after exposure to Roundup, which was developed by Monsanto.
Roundup contains glyphosate, a herbicide that kills weeds and grasses. Glyphosate-tolerant crops make up most of the corn, soy, and cotton acreage on U.S. farms.
The jury found Monsanto liable for failing to warn Durnell of the danger posed by glyphosate and awarded him $1.25 million in damages. Separately, the company has paid out billions of dollars in settlements over Roundup.
The jury’s finding of liability was upheld by a state appeals court, and the Missouri Supreme Court declined to review the case. Many other lawsuits have been filed alleging that Roundup caused medical problems.
Monsanto, which Bayer purchased in 2018, asked the nation’s highest court to overturn the ruling, arguing that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) governing the labeling of pesticides preempts any state requirements and that the court should take into account the fact that the Environmental Protection Agency (EPA) has approved labeling Roundup without a cancer warning.
If Monsanto wins the case, thousands of pending lawsuits could be dismissed; if it loses, the company could face significant liability.
The Trump administration supports Monsanto’s position in the case.
The high court needs to protect the labeling authority in the Federal Insecticide, Fungicide, and Rodenticide Act, he said.
Public health regulators worldwide have found that glyphosate does not cause cancer in humans. The EPA has repeatedly affirmed its finding that glyphosate is not carcinogenic when used as directed, but in 2015, a working group of the International Agency for Research on Cancer classified glyphosate as an agent that was “probably carcinogenic to humans,” based on what Monsanto’s petition called “limited evidence.”
The cancer finding of the international agency, which is part of the World Health Organization, was rejected by the European Chemicals Agency, the European Food Safety Authority, and the national health authorities of New Zealand, Germany, Canada, and Australia, according to the petition.
“A Missouri jury imposed a cancer warning requirement that EPA does not require,” he said.
That added requirement is preempted by federal law, the lawyer said.
Congress wanted uniformity in labels on chemicals, and ignoring Congress’s directives would “open the door for crippling liability and undermine the interests of farmers who depend on federally registered pesticides for their livelihood,” Clement said.
Justice Neil Gorsuch asked Clement why lawsuits in state courts would be at odds with federal regulations.
“Supposing that EPA can bring a claim against you for misbranding and seek criminal and civil penalties despite a properly registered item, how would it be inconsistent with FIFRA to allow state tort suits to do the same thing?” the justice said.
Chief Justice John Roberts asked Principal Deputy U.S. Solicitor General Sarah Harris whether the states can do anything if a new risk is discovered that is not identified on the label.
Harris said that the states can impose additional penalties but that they can’t “second-guess or undermine this process.”
If 50 different states were “jumping the gun,” offering contradictory assessments about whether something causes cancer, this “completely undermines the authority of the labeling scheme and causes confusion,” she said.
Roberts asked about a situation in which the states were right about the risk.
“It might have been good if they had an opportunity to do something to call this danger to the attention of the people while the federal government was going through ... its process,” he said.
Harris said states can file lawsuits to “spur EPA to action,” but FIFRA does not allow “throwing preemption out the window ... and saying states are perfectly fine to have a free-for-all.”
Durnell’s attorney, Ashley Keller, said that under the federal statute, the EPA cannot block the courts from finding companies liable.
FIFRA’s express preemption clause requires uniformity in law, he said.
“The law of Missouri and the law of the United States have to be the same," he said. "They can’t be in addition to or different from each other.”
Justice Brett Kavanaugh told Keller: “The label subjects you to liability in one state and does not subject you to liability in the other state. Is that uniformity?”
Keller said: “I don’t think it’s state by state. I think it’s jury by jury.”
“As the most widely used crop protection tools in United States agriculture, glyphosate-based herbicides are a cornerstone of this Nation’s agricultural productivity and rural economy, allowing United States farmers and ranchers to maintain high yields and low production costs while ensuring that healthy, affordable food options remain within reach for all American families,” the order reads.
The executive action was opposed by some leaders of the Make America Healthy Again movement, and activists associated with the movement held a rally outside the Supreme Court during oral argument.
The Supreme Court is expected to issue a ruling on the case by the end of June.