Supreme Court divided on Roundup cancer lawsuits

WASHINGTON − The Supreme Court on April 27 appeared divided over whether Bayer can be sued for failing to warn that the company’s Roundup weed killer may cause cancer, hearing arguments in a major case that could block thousands of lawsuits and shield the company from billions of dollars in potential liability.

The Environmental Protection Agency, which regulates pesticides, has not determined that Roundup poses a cancer risk and does not require a warning label saying it does.

The justices are deciding whether that means Roundup users who’ve developed cancer cannot sue by claiming the weed killer violates state laws about dangerous products.

Justice Brett Kavanaugh emphasized that a major purpose of the federal law is to provide uniformity.

“Do you think it’s uniformity when each state can require different things?” he asked the attorney representing a Missouri man who blames his cancer on Roundup. “The label subjects you to liability in one state and does not subject you to liability in the other state. Is that uniformity?”

But Chief Justice John Roberts probed whether state lawsuits can be a faster way of reacting to changing information about a product’s safety.

“In other words, it’s not necessarily the case that they’re doing something inconsistent with what the EPA would do,” he said. “It’s simply a fact that they’re responsive to the new information more quickly than the federal government is.”

Trump administration backs Bayer

The Trump administration is backing Bayer, the global agrochemical manufacturer that bought Roundup maker Monsanto in 2018. President Donald Trump has separately pushed to protect glyphosate, the active ingredient in the weed killer.

“EPA registers pesticides only if EPA approves their labels as adequate to protect health,” Sarah Harris, an attorney for the Department of Justice, told the justices. “Federal law then requires manufacturers to keep using that label.”

Introduced in the 1970s, Roundup quickly became the top-selling herbicide in the United States and integral to farming.

Lawsuits against Monsanto began after a World Health Organization agency in 2015 said glyphosate was “probably carcinogenic to humans,” a finding the company disputes.

Jury sided with the 'spray guy'

John Durnell, who used Roundup for more than two decades as the “spray guy” for his neighborhood association in a historic St. Louis neighborhood, believes glyphosate caused his non-Hodgkin lymphoma.

In 2023, a jury agreed and said Monsanto owed him $1.25 million – just one of the many lawsuits the company is fighting.

The company’s lawyers told the Supreme Court that the EPA "considered and rejected" the idea of mandating the kind of warning that the jury in Durnell's case recommended.

“Congress plainly wanted uniformity when it came to the safety warnings on a pesticide's label,” said Paul Clement, an attorney for Bayer. “Ignoring Congress’ clear direction here would open the door for crippling liability and undermine the interest of farmers who depend on federally registered pesticides for their livelihood.”

'Not a safe harbor'

Ashley Keller, who represented the man suing Monsanto, argued that nothing in federal law or the EPA’s regulations prohibits Monsanto from adding a cancer warning to its labels.

“Regardless of what the EPA says, they are not a safe harbor,” Keller told the justices. “Though I think there are a lot of conscientious people working at that agency, I think we should also all agree that things slip through the cracks with that agency.”

The government is required to conduct its own safety review every 15 years. But the latest update is years overdue because a federal court in 2022 said the EPA didn’t adequately consider whether glyphosate causes cancer when it reached an interim decision during the first Trump administration.

Other ways of challenging Roundup

Lawyers for the company and the DOJ said there are ways other than through state courts that both a manufacturer and the EPA can be challenged for failing to adequately protect public safety.

Companies are required, under threat of criminal penalties, to bring new information to the government’s attention. And advocates can challenge the EPA’s decision-making.

States can also make an independent decision not to allow the sale of a product in their state.

That prompted Justice Neil Gorsuch to wonder why a state can determine that a product is so hazardous that it must be banned but can’t allow its residents to sue over alleged harms.

Class action settlement is pending

The fight is playing out as a proposed $7.25 billion class action settlement with the company could resolve many of the lawsuits.

The uncertainty over how the Supreme Court will rule could be an extra inducement for people suing Bayer to accept the pending deal, which is not dependent on the outcome of the case.

Bayer hopes that both the Supreme Court and the pending settlement will limit the extent of future lawsuits. The company is also pushing for legislation to shield it from liability.

While Bayer has stopped using glyphosate in Roundup products sold for residential use, the company has said it may have to stop selling glyphosate to U.S. farmers if the lawsuits continue. Major agricultural groups warn that it would pose a "devastating risk to America’s food supply.”

'Stop poisoning the US'

Linda and Jon Martin, retirees from southern California, traveled to Washington to protest Bayer’s push for liability protection and to advocate for healthier farming practices.

“If they’re fighting to get rid of liability, they know they must be liable,” said Jon Martin, who held a sign on the sidewalk in front of the Supreme Court reading “Stop poisoning the US.”

Both said they are Trump supporters and are “very disappointed” that his administration is backing Bayer.

The company’s defense that the EPA doesn’t require a cancer-warning label for Roundup doesn’t cut it with them.

“Just because the EPA says something,” Linda Martin said, “doesn’t mean it’s always the truth.”