An Urban's Rural View

The controversy over glyphosate is taking a new turn.

For years, many of glyphosate's critics were basically anti-GMO; Roundup-Ready seeds were what appalled them. More recently, glyphosate itself has become the focus of controversy. Critics fear it causes cancer.

The International Agency for Research on Cancer fueled these fears with its 2015 declaration that glyphosate is probably carcinogenic to humans -- a position that many regulators around the world, including the U.S. Environmental Protection Agency, have rejected.

Now there's a new twist in the controversy: All three branches of the U.S. federal government are weighing in. Two of them are taking glyphosate's side. The third, the Supreme Court, may also end up giving glyphosate a boost, though that is far from guaranteed.

In the lower courts, the herbicide has been getting clobbered. Something like 170,000 lawsuits have been filed by cancer victims who blame the herbicide. For Bayer, the German company that owns glyphosate parent Monsanto, the result has been tens of billions in damages and settlements.

Now the Supreme Court has agreed to hear a Bayer appeal from a judgment against it in the Missouri state courts. The high court will decide a relatively narrow question: Whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a label-based failure-to-warn claim where EPA has not required the warning. Oral argument has been set for April 27.

Bayer maintains FIFRA bars it from putting a warning on the product's label if the EPA has registered the product without requiring a warning. Quoting the EPA's registration manual, Bayer says "the label (as determined by the EPA) is the law." (https://www.supremecourt.gov/…)

The victorious plaintiffs haven't yet filed their brief, but they're expected to argue that a warning on the label can be required under state law, not just statutory law but tort law as well. They'll likely argue Missouri law imposes a "parallel" requirement to FIFRA's requirement that a product not be misbranded.

A Supreme Court victory wouldn't end Bayer's legal troubles but it would definitely help. Most glyphosate plaintiffs sue on multiple grounds, among them negligence and strict liability. But failure-to-warn is usually one of the grounds and often a critical one. The jury in Missouri, for example, dismissed all plaintiff's claims except failure-to-warn.

The executive branch has moved to prop up glyphosate in two ways. The Trump administration filed a friend-of-the-court brief March 3 supporting Bayer. (https://www.supremecourt.gov/…)

This was especially significant because it marked a reversal in the government's position. In a 2022 case, a Biden administration friend-of-the-court brief supported a glyphosate plaintiff and urged the Supreme Court not to hear the failure-to-warn case. (https://www.supremecourt.gov/…)

The justices took the administration's advice, letting an appeals court's judgment for the plaintiff to stand.

Two weeks before the brief supporting Bayer was filed, President Donald J. Trump issued an executive order declaring an adequate supply of glyphosate-based herbicides and elemental phosphorus "crucial" to national security and food security. (https://www.whitehouse.gov/…)

Trump's Secretary of Health and Human Services, Robert F. Kennedy Jr., has called glyphosate "poison." A few years ago, he was one of the lawyers in a successful suit against Roundup. After Trump issued the executive order, Kennedy was forced to tell his angry MAHA supporters that he disagreed with the president's decision but understood it.

Congress, too, is getting in on the act. The farm bill House Republicans are pushing would shield manufacturers from liability for failing to provide warnings. Its chances of becoming law are uncertain.

The biggest uncertainty, though, is how the Supreme Court will rule. Two years ago, the court overturned a 40-year-old precedent requiring federal courts to defer to agencies' interpretations of the laws they administered. Courts were now supposed to think for themselves.

In this case Bayer is implicitly asking the court to defer to the EPA. The government's friend-of-the court brief calls for deference explicitly.

Its concluding paragraphs warn that juries will tend to find for "the one plaintiff who suffers a rare injury or illness" even when the product is "safe and effective in 99.9% of its uses." State legislatures will pass different and even conflicting requirements forcing an "untenable choice" on manufacturers.

The government's final shot: "Lost in that noise: EPA's considered judgments about what warnings are actually necessary to protect public health, and any hope of uniformity."

Does FIFRA make EPA the ultimate arbiter? What the Supreme Court will decide isn't whether glyphosate is safe but who, under FIFRA, gets to decide whether it's safe -- EPA or the states.

Stay tuned.

Urban Lehner can be reached at urbanize@gmail.com

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