By Frank Giles
The legal battles over glyphosate’s potential liability for causing cancer, specifically non-Hodgkin lymphoma, have been raging for more than a decade. Recent developments have the herbicide back in the spotlight as a case is being considered by the U.S. Supreme Court (SCOTUS).
The case is Monsanto v. Durnell. SCOTUS is reviewing a jury verdict awarding John Durnell more than $1 million in a lawsuit claiming that glyphosate was responsible for his non-Hodgkin lymphoma.
The jury agreed with Durnell that Monsanto had failed to warn about the potential to cause cancer. Monsanto (now owned by Bayer) argued the Environmental Protection Agency’s (EPA) Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is the law when it comes to pesticide registrations. Furthermore, the EPA has repeatedly said glyphosate is “not likely to be carcinogenic to humans” and has never required a cancer warning on glyphosate labels.
SCOTUS is being asked to consider: Does FIFRA preempt (block) a state-law failure-to-warn claim when the EPA has not required the warning that the plaintiff wants?
Where the court falls on this issue is a big deal. A ruling in favor of the defense would likely make most of the remaining lawsuits based on failure-to-warn subject to dismissal. A win for the plaintiff means the legal wars continue.
For a little background on what helped set the lawsuits in motion, the World Health Organization’s International Agency for Research on Cancer (IARC) in 2015 classified glyphosate as “probably carcinogenic to humans.” This gave plaintiffs something to point to in their arguments.
The IARC classification has been controversial, with strong arguments in favor and against it. Regardless of the debate, it helped set in motion litigation that has cost Monsanto/Bayer more than $10 billion in resolutions with billions more on the line.
Daren Coppock, president of the Agricultural Retailers Association, recently wrote an opinion piece on the subject. He argued that FIFRA should be ruled as the binding law that regulates the labeling and use of pesticides.
Coppock noted: “If state tort claims are allowed to impose additional warning requirements beyond those approved by EPA, businesses that comply fully with federal law could still be held liable under state law. The result would be immediate disruption across the agricultural supply chain — higher costs, reduced access to vital tools and increased uncertainty for the farmers who depend on them.”
He added: “FIFRA assigns responsibility for evaluating pesticide safety to the EPA, not to state courts. The agency makes those determinations through scientific review, public input, and a weighing of risks and benefits.
“Tort litigation bypasses that process and asks juries to second-guess EPA’s scientific judgments years later, without access to the full regulatory record and without the agency itself as a party. If those verdicts can override FIFRA and federal approval, the result is a patchwork system in which legal obligations vary by state and evolve retroactively — requirements that retailers and applicators cannot comply with without violating federal law.”
Here’s my take: If there is a problem with the way EPA assesses the safety of pesticides, let’s fix the problem there rather than open it up to a legal free-for-all that has raged for years and potentially many more to come.