US Supreme Court hears arguments on cancer warning labels for Roundup weedkiller

Roundup weed killing products are offered for sale at a home improvement store on May 14, 2019 in Chicago, Illinois. (Scott Olson/Getty Images).

The U.S. Supreme Court could be ready to overturn a Missouri state court verdict that favored a man who sued the manufacturer of the popular herbicide Roundup for lacking any warning that the product carried a risk of cancer after oral arguments in the case Monday.

The arguments focused on whether states could enforce their own labeling requirements of pesticides, or whether federal law preempted any deviation among states. Members of the court’s 6-3 conservative majority emphasized the need for uniformity across the country.

The U.S. Department of Justice intervened in the case in favor of Monsanto, the Missouri-based company that manufactures Roundup and has been owned since 2018 by German pharmaceutical company Bayer. The company faces thousands of lawsuits claiming exposure to Roundup increased a risk of cancer and that the company failed to warn consumers when it reasonably should have known of the risk.

Monsanto denies that the product causes cancer, and the U.S. Environmental Protection Agency has consistently agreed.

John Durnell, a St. Louis resident, sued the company in 2019 claiming that exposure to Roundup over two decades led to his developing non-Hodgkin lymphoma, a type of blood cancer. A Missouri trial court awarded him $1.25 million, and appeals courts affirmed the ruling.

But the Supreme Court, which is the first federal court to hear the case, seemed inclined to protect federal supremacy. The EPA, which regulates labeling requirements for herbicides, does not require the kind of warning the Missouri jury said was appropriate.

Federal law typically trumps state law, which Monsanto and the Justice Department emphasized Monday. Industry groups across the economy tend to support federal supremacy because it saves companies from complying with 50 separate regulatory schemes across states.

‘Is that uniformity?’

An exchange between Ashley Keller, the attorney for Durnell, and Justice Brett Kavanaugh, whom President Donald Trump appointed in his first term, may hold the key to the court’s ultimate ruling.

Keller argued that Congress in the Federal Insecticide, Fungicide, and Rodenticide Act, which governs herbicide use, did not include a clause to expressly say that the federal law would preempt any state claims.

There was no issue of a difference between state and federal law, Keller said. Instead, a particular jury decided a single case based on unique facts, he continued. Different juries in other cases may have decided differently.

But Kavanaugh seemed not to accept that argument. He rephrased a similar question several times, and, even as Keller objected, appeared to dismiss the idea that the Missouri verdict was compatible with a national standard.

“You think it’s uniformity when each state can require different things?” he asked.

Keller rejected that framing. 

“The label’s illegal in one state and legal in another state,” Kavanaugh responded. “That’s uniformity?” 

Keller said he didn’t agree with that premise either, saying the label is not illegal based on the state but based on the facts presented at trial and the jury’s interpretation.

“The label subjects you to liability in one state and does not subject you to liability in another state,” Kavanaugh continued. “Is that uniformity?”

“I don’t think it’s state by state,” Keller said. “I think it’s jury by jury.”

Paul Clement, a well-known conservative appeals lawyer, represented Monsanto in the case, and described Keller’s argument as chaotic. It would not just open up separate regulatory regimes in each state in the country, but subject manufacturers to liability based on the makeup of any particular batch of citizens on a state court jury.

“It’s worse than 50 states,” he said. “It’s every jury is a new day.” 

A host of agencies in countries across the globe have all done studies on glyphosate, the active ingredient in Roundup, Clement said.

“It’s probably the most, like, studied herbicide in the history of man, and they’ve all reached the conclusion based on more data and the kind of expert analysis they can do that there isn’t a risk here,” he said. “You shouldn’t let a single Missouri jury second-guess that judgment.”

Liberal justices seek consumer protections

The court’s liberal justices spent more time questioning why states shouldn’t be allowed to enforce stricter regulations.

Justice Elena Kagan asked Principal Deputy U.S. Solicitor General Sarah M. Harris, who argued on behalf of the federal government in favor of throwing out the verdict against Monsanto, if she agreed with Clement’s argument.

Harris said she largely agreed, noting that 50 states setting up separate regulations on labeling pesticides would cause confusion.

But Kagan asked why uniformity should be a higher goal than safety, saying a certain state government might have a better understanding than the EPA.

“It does undermine uniformity, I appreciate that,” Kagan said. “On the other hand, if it turns out that they (state regulators) were right, 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.”

Justice Ketanji Brown Jackson also pointed out that the EPA only registers herbicides once every 15 years, meaning that states might have better information than the EPA, especially later in that cycle.

“Lots of things can happen in science in terms of developments about the product,” she told Clement. “So if the product can become misbranded because of new information, I guess 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.”