For years, litigators, activists and scientific experts have called on the U.S. Supreme Court to weigh in on the litany of local lawsuits related to the herbicide glyphosate. As the court deliberates on the case Monsanto v. Durnell, they will soon get their wish.
The case is nominally about pesticide labels. The question lurking behind it is whether manufacturers must keep submitting to a parallel, plaintiff-bar-controlled regulatory regime that uses state juries to override the federal agencies Congress clearly empowered to make these calls.
A clean ruling for Monsanto would rein in the disproportionate power of the plaintiff bar – and dismantle the lawfare playbook a generation of mass-tort lawyers have used to extract billions of dollars from American businesses and their consumers.
The case is part of a “tidal wave of litigation” that has cost Bayer, the German pharma company that now owns Monsanto, over $11 billion and “forced Monsanto to remove glyphosate from the consumer version of Roundup,” making the product less effective for millions of farmers. Plaintiff John Durnell sued in a Missouri state court in 2019, claiming Roundup caused his non-Hodgkin’s lymphoma. He is one of more than 175,000 plaintiffs ascending the litigation ladder.
The litigation ladder consists of three steps. Latch onto a single outlier scientific claim. File thousands of suits in plaintiff-friendly venues. Consolidate them into a multidistrict litigation engine until the defendant has no rational option but to settle. Roundup is the most lucrative example to date. The next targets are already featured prominently in billboard and lawyer advertising: gas stoves, talc, baby food, “forever chemicals,” and any product the trial bar can link to a sympathetic plaintiff.
The legal question is whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a state-law failure-to-warn claim when the EPA — which has reviewed glyphosate dozens of times over 40 years — has not required a cancer warning, and has told Monsanto it cannot add one without violating federal misbranding rules. Congress has maintained since 1972 that federal labeling preempts state labeling. That year, it significantly strengthened FIFRA’s registration and labeling standards, rendering state labeling rules unhelpful at best. Otherwise, as Principal Deputy Solicitor General Sarah Harris told the justices, “you completely undermine the uniformity of the labeling scheme and cause confusion.” Justice Brett Kavanaugh put it more sharply to Durnell’s lawyer: “The label’s illegal in one state and legal in another state. That’s uniformity?”
Giving states like California veto power over national labeling practices is a recipe for stagnation. Every serious regulator on the planet has thoroughly and exhaustively reviewed glyphosate. The EPA, the European Food Safety Authority, Health Canada, Japan, Australia, New Zealand, and the WHO/FAO joint committee have reviewed the herbicide and concluded it is not a carcinogen at typical exposure levels.
The lone outlier is the International Agency for Research on Cancer, an obscure WHO body that has also classified hot beverages as a cancer risk. Reuters has documented IARC editing inconvenient findings out of its own reports. Yet that single 2015 monograph has fueled an entire litigation industry built around what Paul Clement, former solicitor general and the attorney representing Monsanto, accurately called “the most studied herbicide in the history of man.”
There is a real role for state tort law – slip-and-falls, medical malpractice and local nuisance. But when a Missouri jury’s reading of glyphosate science can rewrite the label every American farmer follows, federalism has been turned on its head.
The Supreme Court has the chance, and the votes, to say so. A preemption ruling will not end mass-tort litigation, but it will end a specific playbook in which a fringe scientific finding plus a friendly state jury equals an $11 billion shakedown of an EPA-approved product.
Such a ruling wouldn’t be pro-business. It would be pro-consumer – the kind who would rather have a working weed killer, an affordable baby formula, and a functioning gas stove than having to foot the bill for the plaintiffs’ bar.
