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U.S. Solicitor General Elizabeth Prelogar has dropped the hammer on Bayer AG's attempt before the U.S. Supreme Court to end Roundup weedkiller litigation concerning the EPA approved active chemical glyphosate, recommending the court not take up Bayer's challenge.

Bayer petitioned the Supreme Court last August for a Writ of Certiorari. Bayer claimed the Ninth Circuit Court of Appeals got it wrong in the lawsuit Monsanto Company v. Edwin Hardeman.

Hardeman claimed years of using Monsanto's Roundup on his Sonoma County California property gave him non-Hodgkin's lymphoma. At trial, Hardeman attorneys argued Monsanto failed to warn on its product label of the known dangers of the product.

A jury unanimously agreed and awarded Hardeman $80 million in the spring of 2019. The court later reduced the award on constitutional grounds.

Naturally Bayer appealed. And lost hugely. Bayer argued that California's Proposition 65 runs afoul of the Federal Insecticide, Fungicide, and Rodenticide Act. Prop 65 requires companies to warn about cancer risks if an authoritive body has determined a product to be carcinogenic. Such was the case with glyphosate. Basing its judgement from the International Agency for Research on Cancer California categorized glyphosate as a "chemical known to the state to cause cancer" in 2017.

In May 2021, the Ninth Circuit ruled EPA approval of a pesticide label does not give a manufacturer a get-out-of-jail-free card when it comes to liability in the tort system. And for good measure the Ninth Circuit agreed with the jury's finding that Roundup caused Hardeman's cancer:

"The panel held that the district court properly denied Monsanto judgment as a matter of law because evidence showed the carcinogenic risk of glyphosate was knowable at the time of Hardeman’s exposure."

In its Writ of Certiorari, Bayer makes primarily two arguments. First it reiterated its claim that a state law failure to warn claims are preempted by FIFRA. And second, testimony from plaintiffs was not in accordance with federal standards:

“The Ninth Circuit’s errors mean that a company can be severely punished for marketing a product without a cancer warning when the near-universal scientific and regulatory consensus is that the product does not cause cancer, and the responsible federal agency has forbidden such a warning.”

Rather than outright deciding whether or not to take the case the Supremes asked the Biden Administration last December to weigh in. Prelogar filed the government's brief on May 10, getting deep, deep, DEEP into the weeds on whether FIFRA's preempts Harderman's state-law claims alleging that Monsanto failed to warn of the carcinogenic risks of Roundup and glyphosate:

“FIFRA states that registration is not a 'defense for the commission of any offense' under FIFRA, but is simply 'prima facie evidence that the pesticide, its labeling and packaging comply with the registration provisions' of FIFRA. 7 U.S.C. 136a(f)(2). The Act thus makes clear that a particular pesticide may be found to violate FIFRA’s misbranding prohibition even though EPA approved the labeling when registering the pesticide.”

Bayer replied to Prelogar's brief late last month:

“...the government rejects this Court’s conclusion in Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), regarding the 'important[] role' that the express-preemption provision in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) plays in ensuring nationwide uniformity of pesticide labeling, id. at 452. Bates explained that FIFRA 'preempts competing state labeling standards … that would create' a wholly unworkable system, namely '50 different labeling regimes prescribing the … wording of warnings' on pesticide labels. Id. The government, however, now embraces that 50-state approach...”

While the hand-to-hand fighting in the courts over carcinogenic warning labels has been fierce, this case at its core is about whether Bayer can get the high court to issue an opinion to invalidate the research from the IARC and the expert testimony at Hardeman's jury trial that glyphosate caused his non-Hodgkin's lymphoma. If Bayer gets that brass ring, golden ticket, goose that lays the golden egg (pick your favorite or make up one of your own), it could put an end to all glyphosate litigation, including ongoing cases, and perhaps even encourage Bayer to claw back past class-action settlements.

And this is where things get very, very murky given the major controversy on how EPA approved glyphosate in the first place. The Supremes need to see the big picture here. Yes there needs better clarity on the relation of state tort laws and FIFRA. But Bayer's end game is much much bigger than a labeling ruling. But this is not the case to rule on whether glyphosate is a carcinogen. It would be a mistake of stunning proportions if the Supreme Court did so.

About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at dave.dickey@investigatemidwest.org.