No Safe Bets – Supreme Court Glyphosate Case Seen Too Close to Call

By Carey Gillam
Published April 30, 2026 on The New Lede

Monday’s Supreme Court hearing over a federal law governing pesticide regulations left observers largely unsure how the court will rule in the case involving the former Monsanto company and the herbicide glyphosate, with many seeing the ultimate decision as too close to call.

The hearing featured a barrage of questions from the justices primarily targeting the lawyer representing Monsanto and a representative from the Department of Justice, which is siding with Monsanto in the case.

Justices pressed the lawyers on many fronts, including asking how new science indicating harm associated with a pesticide should be handled after a pesticide was already approved and on the market by federal regulators. Justices also cited prior rulings that could contradict the company’s arguments.

The scope and type of questions led some who had thought the odds were strongly in favor of Monsanto and its German owner Bayer to back off those predictions following the hearing.

Tom Claps, managing director of legal and regulatory analysis at the Gordon Haskett advisory firm, sent a note to Bayer investors following the hearing lowering the company’s “odds of success” from 70% to 55%, saying the hearing “was a closer call than expected.”

“Our view is that Bayer is likely feeling somewhat less confident in its position after today’s oral argument than it was entering the courtroom,” Claps told investors in his advisory note. He noted that the justices “pushed back” on the company’s position and arguments more strongly than they did with the other side.

Consumer lawsuits at issue

Bayer has spent the last decade fighting more than 100,000 lawsuits by people who developed non-Hodgkin lymphoma they blame on exposure to Monsanto’s glyphosate-based weed killers such as the Roundup brand. The lawsuits came after the International Agency for Research on Cancer classified glyphosate as probably carcinogenic to humans in 2015.

Since then, the company has paid out billions of dollars in jury awards and settlements to plaintiffs who claim the company should have warned them and other Roundup users of a cancer risk. An estimated 60,000 cases are still pending.

In the case before the Supreme Court this week, Monsanto v. Durnell, the company asked the court to rule that under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), juries in state courts cannot hold the company liable for failing to warn of a cancer risk if the Environmental Protection Agency (EPA) has not found such a risk exists and has not required such a warning. The EPA’s position is that glyphosate is “unlikely” to be carcinogenic.

If the high court agrees that FIFRA preempts state actions on failure to warn, then it would make it harder for consumers to file such lawsuits, not just against Monsanto, but against other pesticide makers as well.

“Crystal clear”

In presenting the company’s argument to the court, lawyer Paul Clement told the justices that failure-to-warn claims are “preempted twice over” in FIFRA and the law is “crystal-clear that a registrant cannot change the safety warnings on a pesticide label” without EPA approval.

Several analysts noted that Justices Sonia Sotomayor and Ketanji Brown Jackson seemed very skeptical of Monsanto’s arguments, while Justice Neil Gorsuch and Chief Justice John Roberts also appeared reluctant to agree with the company.

In one exchange Chief Justice John Roberts pressed Principal Deputy Solicitor General Sarah Harris, who argued on behalf of the federal government in support of Monsanto’s position, about what should be done when evidence of risk arises and the EPA is bogged down in a “long process” of review.

“If it turns out that they were right, it might have been good if they had an opportunity to do something to call this danger to the attention of the people while the federal government was going through its … process,” he said to Harris.

Justice Gorsuch raised a question as to why states could legally ban a pesticide the EPA approves, but not require a warning.

In contrast, Justice Brett Kavanaugh appeared supportive of the company’s arguments, asking about needs for “uniformity” in labeling, while the leanings of the others were less clear.

Many thought Ashley Keller, lawyer for Durnell, scored well in the hearing, opening with the declaration that:

“After two briefs and a lot of podium time, Monsanto still hasn’t pointed to one word in FIFRA’s text that says the agency’s factual findings at registration create a requirement for labeling.  That’s because the text repudiates that proposition in no uncertain terms. There is nothing in, by, under, or next to FIFRA that makes the registration decisions that EPA makes binding labeling requirements with preemptive force,” Keller told the justices.

No safe bets

Ricky Le Blanc, managing attorney at Sokolove Law, a firm that represents Roundup plaintiffs against Monsanto, said trying to guess how the Supreme Court will rule is a “dangerous game.”

“Based on the arguments made and the questions asked by the Justices, the only safe bet is to say that this could be a close decision,” Le Blanc said.

Erin Wood, a partner at Nachawati Law Group, which represents more than 5,000 Roundup plaintiffs, said based on the lines of questioning, the justices did not appear to already have their minds made up.

“I did not find that the totality of the questioning overwhelmingly favored either side,” she said. “I think the ultimate ruling could go either way and that the justices still likely have a bit of work to do to get to a decision.”

Prediction markets, including the popular Kalshi platform, were favoring a Monsanto win, though odds in the company’s favor slipped since the hearing.

Some observers were predicting a win for Durnell. After attending the hearing, Charles Benbrook, a longtime agricultural industry analyst and consultant to plaintiffs in Roundup litigation, said he expects the decision to be divided, but predicts a 5-4 or 6-3 decision in favor of Durnell, with Roberts, Gorsuch, Jackson, Sotomayor, and Justice Elena Kagan ruling against Monsanto.

Similarly, attorney David Wool, who attended the oral arguments in person, said while the court was clearly divided, he also expects a ruling against Monsanto.

“I think a majority of the justices will concur that, through FIFRA, congress intended that pesticide manufacturers like Monsanto are always responsible for the adequacy of their labels,” said Wool, who represents several hundred Roundup plaintiffs.

Stanford law professor Nora Freeman Engstrom, who serves as co-director of the Deborah L. Rhode Center on the Legal Profession, said that regardless of how the court rules, the litigation could continue.

“Even if Bayer convinces the majority of the court that [FIFRA] preempts plaintiffs’ failure-to-warn claims … plaintiffs have several other claims they can assert, including claims for negligence, design defect, negligent misrepresentation, and fraud,’” Engstrom said. “So a victory for Bayer may narrow the litigation; it won’t end it.”

A ruling is expected by late June.

Read the original article on The New Lede »

Chemical Collision: The Pesticide Provisions that Nearly Derailed the House Bill

By Jonathan Coppess
Published April 30, 2026 on University of Illinois farmdoc daily

Prior to passing H.R. 7567, the House agreed-to an amendment that struck the most controversial provisions from the bill, clearing its path to passage. The vote was 280 in favor of striking the pesticides provisions, to 142 opposed (13 not voting) (House Clerk, Roll Call 148). This article will review the provisions struck from FFNSA as an introduction to federal pesticide policy and to begin exploring some of the questions raised by the controversies over those provisions in the House debate.

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes the Environmental Protection Agency (EPA) to regulate the sale and use of pesticides (7 U.S.C. §136 et seq.). Congress designed the regulation of pesticides through a system of testing, risk assessment, registration, and labeling, meaning that no one can sell or distribute a pesticide unless it is registered and contains a label of approved uses, as well as restrictions on use or application. It is also a violation of the law to use a pesticide in a way that is not consistent with the approved uses or the label instructions, including restrictions on use (Esworthy and Yen, November 14, 2012; Heflin, May 2, 2025). The pesticide label is the controlling legal mechanism (the “label is the law,” so to speak); most enforcement actions are initiated by state regulators, triggered by alleged use of a pesticide contrary to the label (Ozymy and Jarrell, 2020).

For the issues confronting pesticides policy today, it is important to step back a quarter of a century to when a group of 29 Texas peanut farmers sued Dow Agrosciences L.L.C. over an herbicide marketed as “Strongarm” that damaged their crops for reasons not addressed in the registration or label (Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 435 (2005)). The farmers sought damages under the Texas Deceptive Trade Practices-Consumer Protection Act; Dow sought to have the case dismissed as pre-empted by FIFRA, which provides that States “shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required” under FIFRA (7 U.S.C. §136v). Note that, aside from labeling or packaging requirements, states may regulate pesticides so long as they do not permit use or sales of pesticides otherwise prohibited under the federal law.

The issue before the Supreme Court in 2005 was whether the pre-emption provisions of FIFRA applied to lawsuits based on state tort or common law (Bates, 544 U.S., at 440). The Court concluded that FIFRA did not pre-empt such state law claims. The Court explained that pre-emption requires two conditions: (1) the State law “must be a requirement for labeling or packaging,” not “rules governing the design of a product”; and (2) “it must impose a labeling or packaging requirement” that adds to or is different from the EPA label under FIFRA (Bates, 544 U.S., at 444). The Court explained further that State laws requiring “manufacturers to design reasonably safe products,” or “to market products free of manufacturing defects” were not pre-empted by FIFRA so long as they did not require anything added or changed on the label and packaging (Id., at 444). Noting that “FIFRA does not provide a federal remedy to farmers and others who are injured,” the Court added that “the threat of a damages remedy will give manufacturers an additional cause to comply” with federal law—FIFRA “does not preclude States from imposing different or additional remedies,” it only precludes “different or additional requirements” on the label or packaging (Id., at 448 (emphasis in original)).

Returning to the unfinished business of the Farm Bill, the House Agriculture Committee included revisions to FIFRA that would have provided vast legal protections to pesticide manufacturing entities. These were tucked into the title that reauthorizes programs for specialty crop producers, which was an interesting drafting choice. The two provisions, Sections 10205 and 10206, were highly controversial and were removed from the bill by an amendment led by Representative Anna Paulina Luna (R-FL) (House Clerk, Roll Call 148; House Rules Committee, 119-H.R. 7567, (listed as amendment #29); House.gov, April 29, 2026 (listed as amendment #28)).

The legislative text for Section 10205. The provision was cleverly drafted. The bookends of the highlighted phrase seem almost unremarkable, requiring national uniformity in pesticide labeling and continuing the prohibition on labeling or packaging requirements that differ from the federally approved label. Between those words are the heart of the controversy. While it is couched within the language of labeling that is FIFRA’s regulatory domain, this provision would have prohibited states and courts from penalizing or holding any pesticide manufacturing entity liable for their products.

The words “indirectly imposing or continuing in effect,” “or penalize or hold liable,” and “requirements that would require” are extraordinarily expansive, doing much of the work. For example, damage awards or other penalties are requirements to pay which would meet this standard, and the middle phrase (“, or penalize or hold liable,”) likely would have provided separate protection against liability or penalties on its own.

The second provision struck from the bill was Section 10206, and it was much more straightforward. It added a prohibition against any local governmental regulation of a labeled pesticide, not just prohibiting changes to labels and packaging. In other words, a town or city would not have been able to ban pesticide applications within its limits, nor could they have restricted applications near schools, playgrounds, or other sensitive areas. The provision would have added further restrictions on local authorities in addition to Section 10205. 

The removal of these provisions presumably cleared the way for the H.R. 7567’s passage. The entire episode potentially provides important lessons for those inclined to such matters. Among these lessons are reminders about the extraordinary power of public deliberation over matters of policy, and the critical importance of voting in a system of representative self-government (Waldron, 1985). It can be messy and chaotic, but the value of working through disagreements over public policy in a public process cannot be overstated. The debate and the vote, even the chaos, demonstrated that revising FIFRA to protect the industry is not popular nor politically supported; the optics are bad and the politics are worse, especially in an election year (Philpott, October 22, 2025; Stone, April 28, 2026; Formuzis, August 4, 2025; Held and Alvey, September 9, 2025).

The issue also puts farmers in a difficult position. Many farmers benefit from the weed and pest controls these products offer, but not all farmers and not from all pesticides. There has been no shortage of lawsuits and conflicts, and worse, over pesticides among farmers in recent years (Brown, 2025). Importantly, the previous Supreme Court case was brought by farmers for damages to their crops from a pesticide. Without tort liability or other legal avenues, there are no remedies for damages caused by the products, including for farmers (Bates, 544 U.S., at 448).

As such, the controversy presents the potential to consider important questions about the FIFRA regulatory scheme, such as whether the labeling system is an effective way to regulate the manufacture and use of these chemicals, or potentially shifts too much of the burden to the applicator and the farmer. Whether the labeling system is the best and most effective way to manage these substances, is just one among many important questions if there is sincere interest in rethinking this policy. While these matters are beyond the scope of this article, they offer much for further research, analysis, and deliberation for those inclined to do so. One potential upside to this episode, therefore, is that it could serve as a catalysis for serious and critical conversations on the topic. One example took place in Chicago in March, when the Institute for Sustainability, Energy and the Environment (iSEE) at the University of Illinois held a Critical Conversation on pesticides issues (iSEE, Spring 2026).

Read the original article on University of Illinois farmdoc daily »

Supreme Court Grills Bayer Over Failure to Warn Consumers About Roundup Risks

By Patrick Thomas
Published April 27, 2026 on Wall Street Journal

Bayer is facing thousands of lawsuits brought by consumers who claim its flagship weedkiller causes cancer

The Supreme Court questioned Bayer’s liability for failing to warn consumers about Roundup’s potential cancer risk.

The Supreme Court grilled Bayer over whether it is liable for failing to warn consumers that its flagship weedkiller Roundup might cause cancer, in a case that could wipe out thousands of legal claims and help bring closure to a battle that has engulfed the company for years.

Justices across the ideological spectrum on Monday appeared receptive to arguments that the pharmaceutical and agriculture company can be sued for damages under a Missouri law requiring companies to warn consumers about risks from their products, even though the product wasn’t mislabeled under federal law because regulators had determined it was safe to use. 

A ruling against Bayer would be a blow to the company’s efforts to contain the Roundup litigation, which has cost it billions of dollars. 

Chief Justice John Roberts expressed openness to Bayer’s argument that federal law is designed to create uniformity in the labeling of herbicides. But he questioned why states would be unable to do anything if a product is determined to be dangerous after the government approved its use.  

If it turns out the states were right, “it might’ve been good if they had an opportunity to do something to call this danger to the attention of the people while the federal government was going through its process,” he said. 

Bayer has been wrapped up in litigation over Roundup—the world’s most widely used weedkiller—since its $63 billion acquisition of Monsanto in 2018. Monsanto revolutionized American agriculture by developing the powerful herbicide.

Thousands of consumers have sued the company over almost a decade claiming glyphosate, the key ingredient in Roundup, caused their cancer, and that the company should have done more to warn them about the risks. 

The case that Bayer petitioned the Supreme Court to take on involves a Missouri gardener, John Durnell, who used the weedkiller for years. He alleges exposure to it caused him to develop non-Hodgkin lymphoma and that the company failed to warn of any danger on the product label. A jury awarded him $1.25 million in damages, which were upheld by a state appeals court.

Getting a favorable ruling from the Supreme Court is a key part of Bayer Chief Executive Bill Anderson’s plan to contain the Roundup litigation this year. If Bayer prevails, it could help lead to the dismissal of thousands of cases against the company. Some plaintiffs could refile but it would also eliminate a key argument about the company’s failure to warn, making it potentially more difficult for them to win at trial.

Bayer has maintained that Roundup is safe to use. Governments globally and the Environmental Protection Agency in the U.S. have repeatedly determined that glyphosate isn’t likely to be carcinogenic in humans and approved Roundup labels that didn’t include cancer warnings. The World Health Organization’s International Agency for Research on Cancer, however, classified glyphosate as “probably carcinogenic to humans” in 2015.

Durnell and other plaintiffs argue the company should go further in how it warns farmers and landscapers of the risks the herbicide may pose. But Bayer argues that those claims supersede the EPA’s authority and would cause a patchwork of rules imposed by individual states.

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) prohibits states from imposing different or additional warnings from those required under the federal law.

States do have the authority to pull a product from the marketplace in their region, and Justice Neil Gorsuch questioned why they can’t also punish companies for failing to warn consumers about the dangers. 

“That greater power exists, why doesn’t the lesser power,” he said.

The Trump administration supported Bayer’s appeal, arguing the company can’t be held liable for failing to warn consumers because the EPA approved Roundup’s label without a warning and the company isn’t free to add one without the agency’s approval. 

Durnell’s lawyer, Ashley Keller, said both state and federal law have to be followed. But Justice Brett Kavanaugh pushed back on that. “If the label is illegal in one state and legal in another state, that’s uniformity?” he asked.

Read the original article on Wall Street Journal »

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