Roundup Wins in SCOTUS

Its good to be Monsanto! If you do not recall, I had written about the Monsanto issues years ago. Can’t find that post. In a nutshell, the “active ingredient is glyphosate. Mainly, it’s linked to carcinogenicity and the ability to cause cancer and specifically non-Hodgkin’s lymphoma. Unless, you go out in the field gress in rubber, there is a chance you may be exposed to toxins, poisons, etc. within the liquid. The question becomes, what harm does a warning label do? Little if anything to the seller of the product.

I believe sometimes the court should be exposed to the same environment they claim is safe. I use environment broadly.

“Court rules for Roundup maker in dispute over cancer warnings on pesticide labels,” SCOTUSblog

The Supreme Court on Thursday sided with Monsanto in a high-stakes dispute over cancer warnings on pesticide labels. In an opinion by Justice Brett Kavanaugh in Monsanto Company v. Durnell, the court ruled, by a vote of 7-2, that state lawsuits aimed at holding the company liable for failing to warn consumers about the potential risks of Roundup exposure are barred by the federal law governing pesticide sales.

Justice Ketanji Brown Jackson wrote a dissenting opinion, joined by Justice Neil Gorsuch. In it, she contended that Thursday’s ruling is based on “a labeling requirement that does not exist,” and described the effects of the majority’s interpretation of the law as “both remarkable and regrettable.”

The court’s ruling comes after decades of debate and litigation over the safety of glyphosate, a highly effective and popular herbicide that serves as the main active ingredient in Monsanto’s Roundup weedkiller. Since 1974, when the Environmental Protection Agency first reviewed and registered glyphosate-based pesticides, clearing the way for their sale in the United States, the EPA has repeatedly concluded that such products do not need to carry a cancer warning. However, the EPA’s determinations have not dispelled concerns about Roundup’s cancer risks. These concerns increased in 2015, when a working group of the International Agency for Research on Cancer, part of the World Health Organization, classified glyphosate as “probably carcinogenic to humans.”

The IARC’s report led to tens of thousands of lawsuits against Monsanto over how Roundup products were labeled. Plaintiffs such as John Durnell, who brought the case that was before the court, contended that the company was liable for failing to warn them about the alleged link between glyphosate and cancer, while Monsanto countered that the EPA, which oversees pesticide labeling, had not required a cancer warning.

Over the past decade, Monsanto has paid billions in damages and settlement agreements in these lawsuits even as it has continued to assert that state-level claims over Roundup labels are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, which authorizes the EPA to regulate the use, sale, and labeling of pesticides and which includes a uniformity requirement prohibiting states from imposing “any requirements for labeling or packaging in addition to or different from those required” by the federal government.

When it asked the Supreme Court to clarify the scope of FIFRA, Monsanto emphasized that thousands of lawsuits over Roundup’s label remain pending and claimed that the future of U.S. agriculture was at stake in the case. In January, the justices agreed to weigh in.

On Thursday, the court held that FIFRA expressly preempts a state-law failure-to-warn claim against Monsanto, because such a claim would require the company “to add a cancer warning to Roundup’s label” that is not part of the EPA-approved label. That outcome, Kavanaugh wrote in his 22-page majority opinion, runs afoul of FIFRA’s uniformity requirement.

Before registering a product for sale and distribution, Kavanaugh explained, the EPA “undertakes an extensive review of the pesticide and its proposed labeling,” and “determine[s] that the proposed label includes all warnings necessary and adequate to protect human health and the environment.” Once registered, “the manufacturer is required to use” the label approved by the EPA until it receives approval for a change or the EPA orders a change. The agency, according to Kavanaugh, “possesses a slew of tools to monitor the pesticide market and scientific developments, and thereby ensure that pesticide labels contain appropriate warnings in light of changed circumstances or new information.”

Since it first studied glyphosate-based pesticides in 1974, Kavanaugh continued, the EPA has “repeatedly concluded that glyphosate is not likely to cause cancer” and therefore not required “pesticides like Roundup to include a cancer warning on their labels.” That means that, “as a matter of federal law, Monsanto legally must use a label without a cancer warning unless and until EPA approves or requires a change.”

Kavanaugh rejected Durnell’s contention, echoed by Jackson in her dissent, that a state failure-to-warn claim does not violate the uniformity requirement because the goal of both the claim and FIFRA is to ensure that manufacturers “include adequate warnings to protect human health.” Such an argument, he wrote, “operates at far too high a level of generality and disregards the central and comprehensive role that EPA performs in making labeling determinations.”

Kavanaugh also dismissed the idea that state claims must be allowed to ensure that labels account for new research. “EPA does not sit in an information-free silo,” he wrote. “It keeps abreast of new safety developments” and follows up on potentially significant findings, such as when it “commissioned multiple reports about glyphosate’s potential carcinogenicity” after the IARC report came out. Third parties are free to “bring new information to EPA’s attention,” Kavanaugh concluded, but they cannot use state lawsuits to “impose labeling requirements” that the EPA has deemed unnecessary or inaccurate.

Justice Clarence Thomas wrote a brief concurring opinion, in which he expressed support for the majority opinion but called out what he believes are “underlying constitutional infirmities” in FIFRA. “[T]he Act,” he wrote, “likely exceeds Congress’s authority under the Commerce Clause,” because agriculture and manufacturing are “entirely ‘separate’ from ‘commerce.’” It also “raises questions about Congress’s ability to delegate core legislative power to the EPA,” he contended, and about separation-of-powers issues raised by “the modern administrative state.”

In her 24-page dissent, Jackson wrote that the court should have joined the “chorus” of “state and federal courts that have rejected” Monsanto’s preemption argument. She asserted that FIFRA gives the EPA the authority to review product labels when assessing pesticides, but not the authority to have the final say on cancer warnings. “In accepting Monsanto’s argument and holding that Durnell’s failure-to-warn claim is preempted, the Court misunderstands FIFRA’s requirements, misinterprets the scope of FIFRA’s preemption, and ultimately leaves Durnell without a remedy for the significant harms he has suffered,” she wrote.

“FIFRA,” according to Jackson, “expressly limits States’ authority to regulate pesticide labels, but it does not eliminate that authority.” States retain the power to impose labeling requirements that are “‘equivalent to’ FIFRA’s requirements,” and the cancer warning at issue in this case is one such permissible state requirement because it stems from the shared goal of avoiding misbranding. “As the Missouri Court of Appeals explained, Durnell’s claim has the same ‘practical effect’ as FIFRA’s misbranding prohibition: ‘[B]oth require a pesticide manufacturer to adequately warn users of the potential dangers of using its product,’” she wrote.

The idea that “state law cannot require Roundup’s label” to include a warning that the EPA has not required “has some intuitive appeal,” Jackson acknowledged, adding that “federal approval should count for something, after all.” But that conclusion “is unmoored from the” the text of FIFRA, which says that registered pesticides can still be subject to a misbranding charge. “This means,” she wrote, “that the EPA’s approval of a pesticide’s label cannot conclusively establish that the pesticide is not misbranded.” “The majority reads into FIFRA a labeling requirement that does not exist, and it reads out of FIFRA the statute’s ongoing prohibition on misbranding,” Jackson concluded.