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In widely anticipated oral arguments today, the U.S. Supreme Court gave no clear signal as to whether it will side with Bayer, which is seeking to avoid lawsuits related to its Roundup weedkiller, or a lower court, which ordered Bayer to pay $1.25 million to a man who alleges Roundup caused his cancer.

At issue is whether pesticide companies are immune from lawsuits for failing to warn consumers about health harms if the U.S. Environmental Protection Agency (EPA) doesn’t require the companies to include those warnings on their product labels.

Today’s arguments stemmed from a lawsuit filed in 2019 against Monsanto by John Durnell, who said he developed non-Hodgkin lymphoma after using Roundup for years. Studies have linked glyphosate, the key active ingredient in Roundup, to non-Hodgkin lymphoma.

Durnell sued Monsanto, which originally developed and marketed Roundup, for failing to warn users about the product’s cancer risk.

Bayer, which acquired Roundup when it bought the agrochemical giant Monsanto for $63 billion in 2018, has already paid more than $10 billion to resolve lawsuits filed against Monsanto before the acquisition. The company still faces more than 60,000 lawsuits in the U.S.

In 2023, a jury agreed with Durnell and ordered Monsanto to pay him $1.25 million. After Bayer appealed, the Missouri Court of Appeals affirmed the decision.

On April 4, Bayer asked the Supreme Court to hear the case, arguing that federal law — specifically, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) — preempts people from bringing state-law failure-to-warn claims against chemical companies, because the EPA doesn’t require Roundup to carry a cancer warning on its label.

The U.S. Department of Justice has sided with Bayer, arguing in an amicus brief that the Supreme Court should reverse the Missouri Court of Appeals’ decision.

The Supreme Court is expected to issue its decision by the end of June.

If the court rules in Bayer’s favor, it would be nearly impossible to sue any pesticide maker for failing to warn consumers about health risks — even if the company knows about the risk — unless the EPA mandates a warning label on the product.

A favorable ruling for Bayer would reshape the national regulatory landscape and effectively limit one of the largest waves of tort litigation in American history.

Justice Brown Jackson cites 15-year interval between EPA product reviews

In today’s hearing, livestreamed on CHD.TV, the justices challenged both Bayer and Durnell’s attorneys’ views of the law.

Paul Clement, attorney for Monsanto, said the EPA has repeatedly concluded that Roundup does not require a cancer warning and that such a warning cannot be added without EPA approval.

The EPA assessed Roundup’s safety and decided what should be on its label when it registered the product for sale in the U.S., he said.

According to Clement, FIFRA prohibits Monsanto from making any substantive change to an EPA-approved label unless it first gets EPA’s permission.

Ashley Keller, attorney for Durnell, disagreed. He said:

“After two briefs and a lot of podium time, Monsanto still hasn’t pointed to one word in FIFRA’s text that says the agency’s factual findings at registration create a requirement for labeling. That’s because the text repudiates that proposition in no uncertain terms.”

Keller pointed out that in a 2005 related pesticide case, Bates v. Dow Agrosciences LLC, the Supreme Court unanimously held that a pesticide can be registered and nevertheless misbranded, even if it uses the label the EPA approved at registration.

“Yet Monsanto now asks you for the opposite holding: that Roundup cannot be misbranded, as a matter of law, because the EPA found for the first time 50 years ago as a matter of fact that it is safe, based on information that Monsanto submitted,” Keller said.

Still, Clement maintained, people can’t bring a misbranding claim if the EPA approved the label.

Associate Justice Ketanji Brown Jackson questioned Clement’s stance, given that the EPA registers products every 15 years based on existing evidence.

“There’s a 15-year window between when that product has to be re-registered again and lots of things can happen in science,” during that time, Brown Jackson said.

She added:

“I’m just wondering why you think that you couldn’t have a situation where it would be perfectly rational for either the EPA or the states to bring to the attention of that manufacturer this new information and process a claim related to it.”

Citizens and activists hold ‘The People vs. Poison’ rally on court steps

Prior to the hearing, a large crowd gathered on the Supreme Courthouse steps for “The People vs. Poison” rally.

The rally featured over 30 speakers, including Vani Hari, an author and food activist known as the Food Babe, Informed Consent Action Network CEO Del Bigtree, several members of Congress, and Children’s Health Defense Senior Advocacy Manager Stephanie Locricchio.

Mark Doudlah, a sixth-generation Wisconsin farmer, spoke of how his father died of mantle cell lymphoma after years of pesticide-based farming. After his dad died, Mark transitioned Doudlah Farms to organic methods.

J.W. Glass, senior EPA policy specialist at the nonprofit Center for Biological Diversity, cited evidence that the EPA’s pesticide safety process is “fundamentally broken.”

According to Glass, a Center for Biological Diversity analysis found that 98% of all pesticides sold in the U.S. that contain a probable or possible carcinogen carry no public health warning.

“For the sake of our families, for our children, for our earth, let’s hope this court today charts a different path. Let’s hope they look at the facts and not pesticide industry propaganda,” Glass said.

Watch the rally here on CHD.TV: