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U.S. Supreme Court—Monsanto v. Durnell
The webinar, Monsanto v. Durnell—Real-Time Analysis with George and Jay, a critique with audio from the Supreme Court session on one of the most foundational cases on pesticides in decades, Monsanto v. Durnell, can be viewed below or at the link above.
Introduction
The public’s right to sue chemical manufacturers that do not warn of product hazards was up for review on Monday, April 27, 2026, by the U.S. Supreme Court. The chemical industry is asking the U.S. Supreme Court to reverse decades of jurisprudence and shield manufacturers from liability associated with those who are harmed but not warned about pesticide adverse effects like cancer, neurological or immunological conditions, reproductive dysfunction, and other chronic illnesses.
Bayer/Monsanto is challenging billions of dollars in jury verdicts that hold the company responsible for disclosing hazards even when not required to do so by regulatory authorities. In the case being challenged, Monsanto v. Durnell, the injured party successfully argued that a chemical manufacturer has a duty to disclose potential harm even when not required to do so on the product label by the U.S. Environmental Protection Agency (EPA). The failure-to-warn in the Durnell case resulted in a jury verdict of $1.2 million, and the total number of jury verdicts and settlements may amount to over $10 billion in liability if the U.S. Supreme Court upholds the lower courts and hundreds of thousands of other plaintiffs make the same claim. The cases involve exposure to the weed killer glyphosate (RoundupTM), the most widely used weed killer in the U.S. and worldwide, which is associated in the scientific literature with a range of serious adverse health and ecosystem and wildlife effects.
Note: While EPA does not recognize glyphosate to be cancer-causing, the International Agency for Research on Cancer (IARC) finds it to be “probably carcinogenic to humans.”
With this case, Bayer/Monsanto, the chemical industry, and allied industries are seeking liability immunity under federal pesticide law (Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA), questioning whether compliance with that law, in the Court's words, “preempts a state-law failure-to-warn claim concerning a pesticide registered by EPA, where the agency has determined that a particular warning is not required and the warning cannot be added to a product label without EPA approval.”
If successful, the Court would be overturning (reversing) its 2005 decision in Bates v. Dow Agrosciences, 544 U.S. 431, which affirmed EPA's approved label as minimum protection, without releasing manufacturers of the responsibility to seek approval for a label that exceeds EPA's minimum. Pesticide manufacturers propose the text for their product labels, and EPA ensures compliance with its minimum requirements, which does not preclude them from disclosing potential adverse effects they know or should have known about. EPA does not require a cancer warning (or other chronic effects typically) on pesticide product labels, even when the agency and the chemical manufacturer have identified a harm, including cancer, under EPA's risk assessment review that it deems “acceptable.”
The Court in the Supreme Court case Dow Agrosciences v. Bates, 544 U.S. 431 (2005) made the important point that the notion of liability “emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items.” In an age of deregulation, the ability to hold chemical manufacturers accountable for warning of hazards is the keystone to minimum protection of public health. Accountability in the courts serves the interests of farmers, farmworkers, consumers, and those potentially exposed to pesticide products, as demand in the market for the safest possible products and practices grows daily.
Core Arguments
The main arguments in the Bayer/Monsanto brief include:
- “FIFRA Expressly Preempts Durnell’s Failure-To-Warn Claim”;
Express Preemption. Monsanto alleges that the FIFRA creates binding federal requirements and is a comprehensive regulatory process. The brief maintains that Bayer’s products are not misbranded, contain necessary warnings, do not cause “unreasonable adverse effects (statutory standard in FIFRA),” and the pesticide product label cannot be changed without authorization by EPA. Monsanto also alleges that the Missouri Court of Appeals is in violation of 7 U.S.C. §136v(b), which forbids state requirements “in addition to or different from” FIFRA’s labeling regime. Previous SCOTUS cases—including Bates v. Dow (2005) and Wisconsin Pub. Intervenor v. Mortier (501 U.S. 597, 1991)—have already clarified the discrepancies between local, state, and federal responsibilities as they pertain to preemption. (For more detail, see the Bates Decision section below.)
- “FIFRA Impliedly Preempts Durnell’s Failure To-Warn Claim”;
Implied Preemption. The implied preemption argument emerges from the logic that the corporation (Monsanto) cannot add a cancer warning without EPA approval, otherwise it could constitute a “misbranding” of the product. Nothing in the law prevents the registrant (manufacturer) from proposing a label that exceeds EPA’s minimum requirement. In Bates v. Dow, the Court ruled: “ Section 360k does not preclude States from imposing different or additional remedies, but only different or additional requirements. . . Accordingly, although FIFRA does not provide a federal remedy to farmers and others who are injured as a result of a manufacturer’s violation of FIFRA’s labeling requirements, nothing in §136v(b) precludes States from providing such a remedy.” The court acknowledges the manufacturer’s power over the pesticide product label, finding, “Successful [tort] actions of this sort may lead manufacturers to petition EPA to allow more detailed labelling of their products [emphasis added].”
- “Preemption Of Durnell’s Claims Is Critical to American Agriculture and Innovation.”
Preemption Critical to Agriculture and Innovation. The argument assumes that alternatives to glyphosate, in this case, are not viable and cannot be used productively and profitably. With state-level failure to warn claims, Bayer/Monsanto states that farmers’ livelihood will be harmed by “keeping efficacious pesticides off the market based on purported risks that EPA has determined are unfounded, or based on risks that are real but reasonable, will cause farmers to resort to products that may create equal (or worse) health and environmental risks, while providing inferior protection for crops.” Moreover, Bayer/Monsanto argues that despite EPA’s conclusion that glyphosate “does not pose a cancer risk and EPA’s express rejection of IARC’s contrary view, plaintiffs have parlayed that IARC finding into over one hundred thousand lawsuits seeking billions and billions in liability.” This argument is undermined by findings in the independent peer-reviewed scientific literature and the November 2025 retraction of a journal article, which was cited in over 800 other peer-reviewed studies, without the authors’ disclosure of their relationship to Monsanto/Bayer. The editor-and-chief, Martin van den Berg, PhD, of Regulatory Toxicology and Pharmacology, which published the article 25 years ago, wrote in the journal, “Concerns were raised regarding the authorship of this paper, validity of the research findings in the context of misrepresentation of the contributions by the authors and the study sponsor and potential conflicts of interest of the authors.” This retraction calls in question EPA’s classification of glyphosate as not carcinogenic. (See Daily News here.) Numerous studies find organic production systems to be more productive and profitable than chemical-intensive practices promoted by Bayer/Monsanto and the agrichemical industry, with savings tied to the natural nutrient cycling and ecosystem services resulting from robust biodiversity. (See Study Affirms that Organic Farming Improves Soil Health, Microbial Life, and Pathogen Resistance with reference to the Rodale Institute’s Farming Systems Trial — 40-Year Report).
U.S. Solicitor General Amicus Brief
In an amicus brief published on December 1, 2025, the Office of the Solicitor General (SG) and the White House called on SCOTUS to grant Bayer’s case certiorari. The U.S. Solicitor General D. John Sauer (former Solicitor General of Missouri, home to Bayer-Monsanto’s U.S. headquarters), in siding with the Germany-based, multinational pesticide corporation, calls for SCOTUS to take on the case, which could lead to a prohibition on state-level failure-to-warn claims based on the arguments laid out in the amicus brief. (See Daily News here.)
The Trump administration argues that certiorari should be granted on three grounds:
- The Missouri Court of Appeals was incorrect in its decision in Durnell v. Monsanto (2023) because the plaintiff argues that there is a prohibition on unilateral label changes for federal labeling requirements; therefore, state tort duties requiring additional warnings are expressly preempted.
- There are now opposing decisions in the Third Circuit and the Ninth and Eleventh Circuits. The Third Circuit Court of Appeals ruled that state-level failure-to-warn claims are expressly preempted by FIFRA.
- FIFRA §136v(b) on “Uniformity” prohibits states from requiring pesticide manufacturers from having to contend with 50 different labeling requirements.
The Solicitor General’s position in the Trump administration is a reversal from the Biden Administration’s position after Bayer’s 2022 petition for writ of certiorari. (See Daily News here for context.)
Review of Bates Decision
A Pesticides and You article (2005) by H. Bishop Dansby, Esq. explains the U.S. Supreme Court decision on “failure to warn” in Bates v. Dow Agrosciences, which includes the following:
- Duty to Warn: Manufacturers have a legal duty to provide adequate warnings about the potential risks associated with their products, including pesticides. This duty arises from the recognition that manufacturers possess knowledge about the potential dangers of their products and have a responsibility to inform consumers about these risks.
- Negligence and Design Defect: If a plaintiff alleges that a pesticide product caused harm even when used according to the label, they may argue that the product was negligently designed due to a failure to warn. In other words, they claim that the manufacturer did not adequately warn about the risks associated with the product’s design. The court may view this cause of action as a “failure to warn” disguised as a “design defect.”
- Parallel Remedies: The court clarified that state common law tort actions, such as failure to warn claims, can run parallel to federal regulations FIFRA. This means that even though FIFRA regulates pesticide labeling, state actions can still be pursued if they do not conflict with federal regulations and are not preempted.
Bates v. Dow cites an earlier case, Ferebee v. Chevron (Ferebee, 736 F. 2d, at 1541–1542), in which the court found:
“By encouraging plaintiffs to bring suit for injuries not previously recognized as traceable to pesticides such as [the pesticide at issue], a state tort action of the kind under review may aid in the exposure of new dangers associated with pesticides. Successful actions of this sort may lead manufacturers to petition EPA to allow more detailed labelling of their products; alternatively, EPA itself may decide that revised labels are required in light of the new information that has been brought to its attention through common lawsuits. In addition, the specter of damage actions may provide manufacturers with added dynamic incentives to continue to keep abreast of all possible injuries stemming from use of their product so as to forestall such actions through product improvement.”
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For additional resources and a glossary of terms, please see our backgrounder at https://bp-dc.org/supremecourt or this QR code.
Audio of the oral arguments courtesy of https://www.supremecourt.gov/oral_arguments/audio/2025/24-1068.
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