The Supreme Court should deny a petition from Monsanto seeking review of an appeals court decision that upheld a $25 million verdict against the company for failing to adequately warn a consumer about the health risks of Roundup exposure.

The long-awaited submission by Solicitor General Elizabeth Prelogar agreed with the 9th U.S. Circuit Court of Appeals that the Federal Insecticide, Fungicide, and Rodenticide Act doesn't preempt Edwin Hardeman’s state “failure to warn” claims.

California resident Hardeman claimed exposure to Roundup from the mid-1980s through 2012 caused his non-Hodgkin’s lymphoma and that Monsanto should have provided warning of the herbicide’s health risks. A federal jury awarded him about $80 million, which included $75 million in punitive damages. A district court judge reduced the punitive damages award to $20 million.

About a year ago, the 9th Circuit upheld the judgment against Monsanto (purchased by Bayer in 2018, but the legal entity in the case), finding that Hardeman’s claims were not preempted by FIFRA. Monsanto filed its petition Aug. 16.

The Supreme Court initially distributed the petition for conference in December but decided to seek Prelogar’s views on the subject. In the brief filed Tuesday, she writes that “although some aspects of EPA-approved labeling may preempt particular state-law requirements, EPA’s approval of labeling that does not warn about particular chronic risks does not by itself preempt a state-law requirement to provide such warnings.”

The pesticide law “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,” the brief says. 

Monsanto has argued that because EPA has concluded glyphosate, the active ingredient in Roundup, is not likely to be carcinogenic, any state label containing such a warning would violate FIFRA because it would be “in addition to and different from” FIFRA requirements.

Bayer said it was undeterred by the solicitor general filing. 

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“The company continues to believe there are strong legal arguments to support Supreme Court review and reversal in Hardeman, as its petition and the many amicus briefs filed in support of the petition underscore,” the company said in a statement.

The Environmental Protection Agency “has consistently found that glyphosate-based herbicides can be used safely and are not carcinogenic,” the statement continued. “Therefore, a cancer warning would be false and misleading and would be preempted by [FIFRA].”

“The decision to accept or deny review rests with the Supreme Court, which will consider the views of the parties – including an additional brief to be filed by the company – as well as the brief from the Solicitor General,” Bayer said. “Regardless of the final outcome at the Supreme Court, the company is fully prepared to move forward with its five-point plan, manage litigation risks and bring closure to the Roundup litigation.”

On the other side, Hardeman lawyers Aimee Wagstaff and Jennifer Moore of Andrus Wagstaff said they are “pleased that the Department of Justice has changed its position and now agrees with the trial court and the 9th Circuit. We’ve always known that the law was on our side, and now the federal government agrees. It is a very good day for cancer victims across this country who seek to hold wrongdoers like Monsanto accountable.”

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