WASHINGTON - Reversing course from the Biden-era legal position, the Trump administration has urged the U.S. Supreme Court to reject lawsuits claiming Roundup herbicide should bear a cancer warning label.
At the request of the Supreme Court, the administration submitted a brief saying federal law prohibits Bayer’s Monsanto unit from adding a warning to the Roundup label and thus preempts state courts from enforcing sometimes-massive verdicts based on failure to do so.
By taking the case, the high court also could resolve a split among federal circuits, the administration said. It was a return to the government’s position before the Biden administration shifted in favor of plaintiff lawyers.
Monsanto faces more than 100,000 lawsuits claiming glyphosate, the active ingredient in Roundup, causes cancers including non-Hodgkin’s lymphoma, a common cancer associated with aging. Plaintiff lawyers began filing suits after a finding by the International Agency for Research on Cancer that glyphosate is a likely carcinogen, although the U.S. Environmental Protection Agency and other regulators around the world reject that conclusion.
The non-voting chairman of the IARC panel was Chris Portier, who quickly went to work as a plaintiff expert after stepping down from IARC.
Roundup is subject to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which regulates labeling and prohibits states from imposing “any requirements for labeling or packaging in addition to or different from those required under” FIFRA. The EPA prohibits cancer warnings on glyphosate, saying the benefits of the widely used herbicide outweigh the risks.
Despite this, courts in California, Pennsylvania and elsewhere have interpreted the law to uphold jury verdicts based on the claim Monsanto should have warned users it could cause cancer. Monsanto argues it can’t comply with what is effectively a state regulation without violating FIFRA. It has asked the Supreme Court to overturn a $1.25 million Missouri verdict won by John Durnell, who claimed he contracted non-Hodgkin’s lymphoma from using Roundup.
The Third Circuit Court of Appeals, based in Philadelphia, last year took the opposite tack, ruling FIFRA preempts state lawsuits. A state court in Philadelphia nevertheless upheld a $177.3 million Roundup verdict this year.
The Ninth and 11th Circuits have ruled the opposite way, creating a split that only the Supreme Court can resolve, the government said. Judges who say Monsanto can comply with state and federal law by changing the label are ignoring FIFRA’s prohibition on requirements “in addition to” what the federal government demands, the administration said.
The EPA also weighed costs and benefits when deciding how to label herbicides, while a jury only considers the alleged costs.
Manufacturers can make “minor modifications” but can’t change the label to add “the type of precautionary statements about health risks that are at issue here,” the government said.
“Where, as here, EPA has specified the health warnings that should appear on a particular pesticide’s label, a manufacturer should not be left subject to `50 different labeling regimes prescribing’ different requirements.”
Monsanto took hope when the Supreme Court sought the government’s opinion on its latest certiorari petition. The high court rejected its last attempt to appeal the Hardeman decision, in which the Ninth Circuit upheld a $25 million Roundup verdict.
