Upcoming SCOTUS Ruling In ‘Failure-To-Warn’ Case Could Change Course Of Glyphosate Litigation

UNIVERSITY OF ARKANSAS DIVISION OF AGRICULTURE

FAYETTEVILLE, ARKANSAS

 The U.S. Supreme Court’s upcoming decision in Monsanto v. Durnell could change the way opponents of pesticides fight their battles, according to an attorney with the National Agricultural Law Center. 

At the center of this fight is Monsanto Company v. John L. Durnell. In 2019, John Durnell of St. Louis sued Monsanto claiming that two decades of glyphosate use caused him cancer. In 2023, a jury found Monsanto liable for "failure to warn" of potential cancer risks and awarded Durnell $1.25 million.

Brigit Rollins, staff attorney for the National Agricultural Law Center, will present a webinar on the topic, “Failure to Warn? A Look at Recent State and Federal Action on Pesticide Labeling,” on May 20. The webinar begins at 11 a.m. CDT or noon EDT. There is no cost to attend. Online registration is available.  

After an appellate court stop, Monsanto v. Durnell moved to the nation’s highest court, which began hearing the case April 27. SCOTUS is not expected to issue a ruling before June. 

“Failure to warn” is about what entity decides whether a cancer warning is needed on a label. Acting under the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA, the Environmental Protection Agency approves pesticide labels through a process that includes scientific review and public comment. States may regulate sales and use of pesticides but may not alter the label. 

The differences between state and federal authority over labels determines in which courts cases over pesticides may be litigated.  

Durnell isn’t the only case involving failure to warn. To date, three federal Circuit Courts of Appeal have considered whether FIFRA pre-empts failure to warn claims. In 2024, the Third Circuit Court of Appeals in Philadelphia concluded that FIFRA pre-empts the state claims.  

However, that same year the Eleventh Circuit Court of Appeals ruled that FIFRA does not pre-empt state failure to warn claims, following the Ninth Circuit Court of Appeals which found that failure to warn claims were not pre-empted by FIFRA in 2021. 

The opposing rulings from the Circuit Courts of Appeal have created what is known as a circuit split where law is applied differently across different jurisdictions. Rollins said if Monsanto owner Bayer prevails, "it would make the Third Circuit's conclusion that FIFRA pre-empts state failure-to-warn claims the law throughout the country." 

There have been thousands of similar personal injury cases filed or pending in the last decade, Rollins said. “They have all been based, in part, on failure to warn claims. If that is removed as an option, the path forward for these cases is less clear.” 

If failure-to-warn arguments are gutted, “we might see fewer cases like Durnell,” she said. Without failure to warn, “attorneys filing similar damage claims will have a harder row to hoe.” 

However, “anyone has the ability to request that a pesticide be canceled,” Rollins said. “You could submit a petition to EPA to cancel the registration.” 

If the petition is denied, plaintiffs could file suit to bring it back to a federal court, she said.  

Information and analysis contained in this story should not be construed as legal advice.    ∆