Bayer nabs high court look at Roundup cancer warning labels

WASHINGTON (CN) — The Supreme Court agreed Friday to review Roundup maker Monsanto’s bid to cut off a flood of personal injury lawsuits for not warning users about the cancer risks of the active ingredient in its weedkiller.

Monsanto appealed to the justices last spring, asking whether John Durnell’s failure-to-warn claim under Missouri law could move forward even though the federal government has not required a warning. The high court agreed to decide whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts such claims.

Durnell sued Monsanto in 2019 after he developed non-Hodgkin lymphoma from being exposed to Roundup. Durnell filed a slew of claims against the company, but a jury only found Monsanto guilty of one: failure to warn users. The Third Circuit upheld the lower court ruling, which included $1.25 million in damages.

The agriculture biotech corporation’s parent company, Bayer, said over 100,000 people have sought accountability for not warning users about the cancer risks of the active ingredient in its weedkiller.

Glyphosate was labeled a carcinogen by the International Agency for Research on Cancer in 2015 — contradicting findings from the EPA, European Food Safety Authority, European Chemical Agency and regulators in Canada, New Zealand, Japan and Australia, which have all found the chemical safe.

Monsanto asked the justices to review whether federal regulations using the EPA’s findings should override the failure-to-warn claims, which relied on findings from the International Agency for Research on Cancer. The company argued that Durnell’s claim is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act because it’s impossible for the company to comply with both state and federal requirements.

“State law effectively tells the manufacturer ‘add this warning,’ while federal law tells it ‘do not,’” Monsanto said. “Because the jury verdict in this case requires Monsanto to include a cancer warning that EPA’s regulations did not require — and in fact affirmatively forbade it from adding — FIFRA preempts respondent’s claim.”

But Durnell claimed that Monsanto was in search of immunity by judicial fiat.

“Monsanto’s implied preemption argument — that federal law prohibits the cancer warning that Missouri law requires — lacks merit,” Durnell wrote. “Monsanto never has proposed a cancer warning for formulated Roundup, and the U.S. Environmental Protection Agency never has rejected one. Instead, EPA has confirmed that FIFRA permits Monsanto to warn that the science shows Roundup is carcinogenic.”

The company said the stakes of the litigation are extremely high, with thousands of lawsuits pending across the country. Monsanto said these cases could also impact how its products are used in the commercial market.

“The cost of managing this veritable flood of litigation has already forced Monsanto to remove glyphosate from the consumer version of Roundup,” Monsanto wrote. “It threatens Monsanto’s ability to supply the product to farmers who depend on it for their livelihoods. And it undermines the United States’ position as a world leader in agriculture. The stakes for glyphosate alone are therefore enormous.”

The high court will likely schedule arguments on Monsanto’s appeal for the coming months and issue a decision by the end of June.

Bayer CEO Bill Anderson praised the Supreme Court’s decision to review the appeal, calling it good news for U.S. farmers who need regulatory clarity.

“It’s also an important step in our multi-pronged strategy to significantly contain this litigation,” Anderson said in a statement. “It is time for the U.S. legal system to establish that companies should not be punished under state laws for complying with federal warning label requirements.”

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