U.S. Solicitor General supports Supreme Court review in FIFRA Case

Bayer welcomed the support of the U.S. Solicitor General, announced Nov. 30, for a United States Supreme Court review of the Durnell case, in which the plaintiff sued Bayer claiming that his non-Hodgkins lymphoma was caused by glyphosate, the key ingredient in Bayer’s Roundup herbicide.

A state jury found in favor of Monsanto on the defective design and negligence claims, but it found Monsanto liable for “failure to warn” and awarded Durnell $1.25 million in compensatory damages. Bayer appealed, and the Missouri Supreme Court upheld the verdict in February. Bayer then asked the U.S. Solicitor General’s office for its views in June, following its original petition to the U.S. Supreme Court for a writ of certiorari, a review of a lower court ruling based on an urgent appeal by a party to a case.

By its split decision, the jury isolated and threw into relief the core issue and set up a federal-state showdown with massive stakes. An explicit ruling in favor of a national standard of federal pre-emption in warning labels would have huge implications not just for Bayer, but for other pesticide and chemical companies, for makers of any products that require a federal label, and for the plaintiff bar. The outcome could affect thousands of pending lawsuits, the future of product liability cases, and the Environmental Protection Agency’s regulatory authority. Getting such a ruling has been the goal of one prong of Bayer’s multi-pronged defense of glyphosate.

The issue is whether federal law—specifically Federal Insecticide, Fungicide, and Rodenticide Act, which gives the EPA authority over pesticide labeling—prevents states from imposing their own additional labeling requirements or allows lawsuits based on “failure-to-warn” claims under state law.

“We see this request as an encouraging step and look forward to hearing the views of the government on FIFRA’s federal preemption provision, which relies on language common to several federal laws that cover a number of industries,” said Bayer CEO Bill Anderson. “The security and affordability of the food supply depend on companies’ and farmers’ ability to rely on decisions made by responsible federal regulatory authorities. When courts permit companies to be punished under state law for following federal law, it makes companies like ours a prime target of the litigation industry and threatens farmers and innovations that patients and consumers need for their nutrition and health.”

The Supreme Court will then make a decision on the company’s petition during the 2025-2026 court session. If the court accepts the case, a decision on the merits could still happen during the court’s next session which ends in June 2026.

“A positive ruling on the central, cross-cutting issue in the Roundup litigation—whether federal law preempts claims based on state failure-to-warn theories–could help to largely contain this litigation,” Bayer said.

In recent weeks, 18 organizations and coalitions, representing agriculture, legal thought leaders, U.S. manufacturers, scientific communities, and a broad swath of business leaders from across the nation, filed amicus briefs urging the Supreme Court to grant Monsanto’s petition. The Chamber of Commerce wrote: “The stakes of this case, and others like it, are enormous … [I]f federal preemption is discarded in cases like this one, manufacturers will routinely face potentially crushing liability under state law for failing to give warnings that federal law forbids.”

Several grower groups like the American Farm Bureau Federation wrote in their amici briefs: “Put simply, America’s agricultural industry could not operate without glyphosate … Immediate devastation will occur for agricultural operations and American food supply.”

David Murray can be reached at [email protected].