SCOTUS News: Justices shut down Roundup failure-to-warn claims

Federal law governing the labeling of pesticides preempts a state failure-to-warn claim against the Monsanto Company for failing to include a cancer warning on the label for its Roundup weedkiller product, the U.S. Supreme Court has ruled in a 7-2 decision that overturns a $1 million jury verdict.

The plaintiff in the case, John Durnell, in 2019 brought a state-law products liability suit against Monsanto in Missouri state court. The plaintiff alleged that he contracted non-Hodgkin’s lymphoma as a result of using Monsanto’s Roundup products for 20 years. Durnell’s failure-to-warn claim asserted Monsanto should have included a cancer warning on Roundup’s label. A jury found Monsanto liable, awarding Durnell more than $1 million in damages.

The Missouri Court of Appeals affirmed, rejecting Monsanto’s argument that the Federal Insecticide, Fungicide, and Rodenticide Act expressly preempted Durnell’s failure-to-warn claim. The Supreme Court granted Monsanto’s petition for certiorari.

The Supreme Court reversed, concluding FIFRA expressly preempted Durnell’s state-law failure-to-warn claim.

Click here to read the full text of the Supreme Court’s June 25 decision in Monsanto v. Durnell.

To the point

“Under authority granted by the Federal Insecticide, Fungicide, and Rodenticide Act, the Environmental Protection Agency regulates pesticides, including pesticide labels. As relevant here, EPA regulates Roundup, aglyphosate-based pesticide manufactured by Monsanto. Because EPA has repeatedly concluded that glyphosate is not likely to cause cancer, the agency has not required a cancer warning on Roundup’s label. Importantly, EPA’s regulations require a pesticide manufacturer such as Monsanto to use the EPA-approved pesticide label — here, the Roundup label without a cancer warning — unless and until EPA approves or requires a different label. Moreover, to ensure ‘[u]niformity’ in labeling, FIFRA’s preemption clause prohibits States from imposing any pesticide labeling requirements that are ‘in addition to or different from’ the federal labeling requirements ‘under’ FIFRA. 7 U.S.C. §136v(b)….

“Durnell’s state tort claim would require Monsanto to add a cancer warning to Roundup’s label even though federal law requires Monsanto to use the EPA-approved label without a cancer warning. Because Durnell’s state tort claim would impose a pesticide labeling requirement ‘in addition to or different from’ the label required by EPA, FIFRA expressly preempts Durnell’s claim.” — Justice Brett M. Kavanaugh, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Sonia Sotomayor, Elena Kagan and Amey Coney Barrett, opinion of the court

“I agree with the Court’s interpretation of the Federal Insecticide, Fungicide, and Rodenticide Act and its application of our preemption precedents. I therefore join its opinion in full. I write separately to call attention to some of the underlying constitutional infirmities in the Act.

“First, the Act likely exceeds Congress’s authority under the Commerce Clause, which authorizes Congress to regulate ‘Commerce … among the several States.’ This power allows Congress to regulate ‘selling, buying, and bartering’ across state lines. It does not allow Congress to regulate ‘agriculture’ or ‘manufacturing,’ activities entirely ‘separate’ from ‘commerce.’…

“Second, the Act raises questions about Congress’s ability to delegate core legislative power to the EPA. As the Court explains, Congress granted the EPA the authority to issue regulations for carrying out the Act. The EPA has thereby issued ‘extensive regulations … dictating what must appear on a pesticide’s label.’ Through these label regulations, the EPA exercises immense power over private businesses and individuals. Violating certain regulations is a federal offense. The EPA thus appears to ‘make substantive rules … punishable with fines or imprisonment,’ a core legislative power that cannot be delegated….

“Third, and relatedly, the Act raises questions about the extent to which federal agency action can preempt state law, a form of preemption taken for granted by the parties in this case. … The Supremacy Clause makes ‘[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties … the supreme Law of the Land.’ The Constitution, federal law, and treaties thus preempt any conflicting state law. Administrative action appears difficult to fit under the Supremacy Clause. Agency action is not the Constitution. Nor is it a treaty. And, ‘Laws’ are made by Congress and the President through bicameralism and presentment. So, if ‘agency action qualifies as “supreme Law,”’ then it arguably ‘violates the Constitution’s separation of powers.” On the other hand, if agencies cannot make ‘Law’ their actions seem to fall ‘beyond the Supremacy Clause’s purview’ and cannot preempt state law.” — Justice Clarence Thomas, concurring

“Monsanto argues that 7 U.S.C. §136v(b) — a provision of the Federal Insecticide, Fungicide, and Rodenticide Act(FIFRA) — expressly preempts Durnell’s failure-to-warn claim. Today, the Court agrees. The majority emphasizes that the Environmental Protection Agency (EPA) has consistently registered Roundup — a precondition to Monsanto’s ability to sell that product — and has thus approved Roundup’s label without a cancer warning. According to the majority, the EPA’s registration decision and approval of Roundup’s label created a labeling ‘requirement’ under FIFRA: namely, that Monsanto sell Roundup with the label exactly as the EPA approved it. Thus, the majority concludes, Durnell’s lawsuit added a labeling requirement that federal law did not require, triggering preemption per§136v(b).
“In so holding, the Court departs from the near-unanimous view of the many state and federal courts that have rejected this preemption argument. In my view, the majority should have joined that chorus. Durnell’s failure-to-warn claim is not ‘in addition to or different from’ FIFRA’s mandates; it is equivalent to FIFRA’s key labeling requirement — the misbranding prohibition. And Durnell’s claim does not conflict with any other FIFRA ‘requirement’ for §136v(b) purposes because the EPA’s registration of a pesticide and approval of its label does not create a labeling requirement under FIFRA.” — Justice Ketanji Brown Jackson, joined by Justice Neil M. Gorsuch, dissenting