The U.S. Supreme Court and Glyphosate: Understanding Durnell v. Monsanto

Close Up of Agricultural Tractor Sprayer Applying Liquid Fertilizer or Pesticide to Green Crop Field in Summer, Modern Farming Equipment and Agribusiness Concept by Md Arif Babu

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As many of you may have seen in the press lately, the U.S. Supreme Court handed down a ruling in Durnell v. Monsanto.  This case involved a jury verdict in a Missouri state court that found in favor of Mr. Durnell in claims that Monsanto failed to warn him that using Roundup could cause cancer.  In this case, Mr. Durnell had been diagnosed with non-Hodgkin’s lymphoma after using the herbicide in his yard for years.  Monsanto, as you might expect, appealed this decision and those appeals worked their way to the U.S. Supreme Court.  In its decision, the Supreme Court ruled in a 7-2 decision that federal law preempts state law requirements to warn consumers of cancer risks.

Justice Kavanaugh wrote the majority opinion for the 7 justices.  In that opinion, he focuses in on 7 U.S.C. § 136v(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  This section requires pesticide labels to be uniform with those approved by the Environmental Protection Agency (EPA).  This prohibits states from adding additional requirements to the label, such as warnings about health effects.  The majority points out that the EPA has repeatedly re-evaluated glyphosate and concluded that it is not likely to cause cancer.  Because of this finding, the EPA has never required a cancer warning on the Roundup label.  For these reasons, any state law requirements that would force Monsanto to warn beyond what EPA has approved in the label are preempted under federal law.

I’m going to skip over Justice Thomas’s concurrence in this column, but I want to turn to the dissent filed by Justice Jackson, with Justice Gorsuch joining her.  Although not often on the same side, they did agree on this dissent.  In their dissent, they disagreed with the majority's decision on the minor label modifications allowed under the regulations implementing FIFRA. These regulations allow pesticide manufacturers to request minor label modifications that would pose no potential harm to the environment.  In their view, adding a cancer warning is a minor modification.  In the dissent, they point to six instances in which pesticide manufacturers had requested these for state-specific cancer warnings, including one example of another company owned by Bayer, the parent company of Monsanto.

What does this mean for you?  Well, this does help provide some clarity to the ongoing debate happening in a number of states about adding cancer warnings to glyphosate products (such as Roundup).  The majority opinion in this case shuts the door and preempts any of those requirements.  As we see more and more litigation over the chemicals used in agriculture, this may place limits on the types of warnings that can be provided.