SCOTUS to Decide on Bayer Roundup Case

LINCOLN, Neb. (DTN) -- The U.S. Supreme Court may decide this week whether to consider Bayer's Roundup petition in a case that could bring product-liability lawsuits to a close on the glyphosate-based weed killer.

The court has scheduled the case for conference on June 26, which is when justices consider which cases to hear.

Both sides in Monsanto Company v John L. Durnell filed briefs with the court in the past month, as Bayer argues the Supreme Court should hear the case to resolve a split among lower courts on whether federal labeling laws preempt state labeling laws.

Durnell, whose attorneys argued that his non-Hodgkin's lymphoma was caused by his use of Roundup, contends in a brief there is not a lower court split on the question.

The Missouri Court of Appeals joined the U.S. Court of Appeal for the Ninth and 11th circuits and state appellate courts in California and Oregon in holding that federal law does not preempt state laws. The U.S. Court of Appeals for the Third Circuit ruled the opposite in another case, according to Bayer's filing.

"In contrast to the plaintiff in Schaffner (v Monsanto Corp.), Durnell has argued all along that FIFRA (Federal Insecticide, Fungicide and Rodenticide Act) requires Monsanto to seek EPA approval for a modified Roundup label that includes a cancer warning," Durnell's attorneys said in a brief filed at the Supreme Court.

"Indeed, that conclusion is compelled by Bates (Bates v Dow AgroSciences LLC). There, the court made clear that 'manufacturers have a continuing obligation to adhere to FIFRA's labeling requirements.' 'It is unlawful under the statute to sell a pesticide that is registered but nevertheless misbranded.' Bates thus requires a manufacturer of a registered-but-misbranded pesticide to fix the issue, 'including by seeking EPA approval to amend a label that does not contain all "necessary warnings or cautionary statements.'"

Durnell's brief said the U.S. Court of Appeals for the Third Circuit's decision in Schaffner -- the only case Bayer cites as creating a split -- declined to address the key preemption question in Durnell's case.

Bayer filed a response to Durnell's brief on June 16.

In a statement to DTN, the company said nothing in Durnell's opposition "changes the undeniable circuit split that only the U.S. Supreme Court" can resolve.

"The plaintiff's revisionist attempt to sidestep FIFRA preemption by claiming the verdict rested on Roundup advertisements, rather than labeling, is a non-starter as it was never argued to the jury and the plaintiff testified at trial that advertisements did not influence his decision to use Roundup," Bayer said.

The company said the Third Circuit was correct when it unanimously held in Schaffner that FIFRA expressly preempts a claim like Durnell's that would require a warning label that is different from one mandated by the U.S. Environmental Protection Agency.

"Under plaintiff's logic, juries could require different warnings in every state for the same pesticide which is contrary to case law and Congress' intent in incorporating a preemption provision in FIFRA to ensure uniformity in labelling across the country," the company said in a statement.

The Roundup lawsuits are based on alleged failure-to-warn claims by individual plaintiffs that say glyphosate in Roundup caused their cancer.

Bayer's petition filed on April 4, 2025, was in response to the verdict in Durnell v Monsanto. In the case the Missouri Court of Appeals upheld a $1.25 million verdict based solely on a state-law failure-to-warn claim.

The Schaffner case addressed just one option for updating product labeling (notification without approval) but did not address the second option of applying for amended registration -- which requires EPA approval.

Attorneys for Durnell argue that unlike the plaintiff in Schaffner, he has consistently maintained that FIFRA requires Bayer to seek EPA approval for a modified Roundup label with cancer warnings.

Schaffner's reasoning rested on the assumption that Bayer had no option to update Roundup's labeling.

Durnell's brief points out this assumption is false -- as evidenced by Bayer updating Roundup's labeling 44 times and proposing to add cancer information in a settlement of multidistrict litigation.

Read more on DTN:

"Bayer Intensifies Roundup Legal Fight," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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