U.S. agriculture would face “devastation” without the use of Roundup herbicide, a dozen major farm groups say in a brief asking the Supreme Court to address the issue of whether federal pesticide law preempts state failure-to-warn claims.
The amicus brief supports a petition filed by Bayer seeking review of a Missouri Court of Appeals decision that upheld a $1.2 million verdict against Bayer in a case brought by a man who says exposure to Roundup caused his non-Hodgkin lymphoma.
Bayer has been fighting lawsuits asserting those claims in state and federal courts, winning many but also losing some, most recently in a state court in Georgia where a man who claimed that use of Roundup caused his non-Hodgkin lymphoma was awarded $2.1 billion in compensation and punitive damages. Bayer is appealing.
About 114,000 Roundup cases have either been settled or are "not eligible for various reasons” as of Jan. 31, according to Bayer's 2024 annual report, leaving about 67,000 awaiting action. The company spent about $10 billion to settle about 100,000 of those claims and has set aside $5.9 billion for future cases.
The company has said it may get out of the glyphosate business altogether if it can’t resolve the Federal Insecticide, Fungicide, and Rodenticide Act preemption issue. It has pursued a multi-pronged strategy, fighting individual cases in state and federal courts and also working – along with numerous commodity groups – to persuade state legislatures to pass bills shielding manufacturers from failure-to-warn lawsuits.
Bayer is arguing that a split in federal appeals courts warrants review of the question of whether FIFRA preempts state law requiring manufacturers to warn consumer of the risks of using products such as pesticides.
The 3rd Circuit Court of Appeals recently ruled last year in Bayer’s favor, creating a split in the federal circuits. In their brief, the ag groups, including the American Farm Bureau Federation and American Soybean Association, among others, argue that the conclusions of the Missouri Court of Appeals and 9th and 11th federal circuit courts of appeals is wrong.
The Environmental Protection Agency has consistently found that glyphosate is safe to use, they say in their brief.
“EPA has concluded on multiple occasions over the past 50 years that glyphosate does not pose a cancer risk,” the groups say. “Numerous international regulatory authorities and health organizations have agreed, including assessments by the European Union, Canada, Australia, Germany, and New Zealand.”
The groups don’t mention the major driver behind the lawsuits against Bayer – the International Agency for Research on Cancer’s 2015 finding that glyphosate probably is carcinogenic in humans. Bayer has called that finding an “outlier.”
“A state requirement to include a cancer warning on a glyphosate label would not only direct the manufacturer to label the product differently from EPA’s findings, but also to make a false and misleading statement on the label given EPA’s repeated findings that glyphosate is noncarcinogenic,” the ag groups contend.
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“Such a label is the result of plaintiff’s failure-to-warn claim in Missouri,” they say in their amicus brief.
CropLife America also has filed an amicus brief supporting Bayer’s petition. The trade group representing pesticide manufacturers says the potential for “astronomical verdicts puts enormous financial pressure on the pesticide industry. The legal and financial crisis facing the manufacturers of products that EPA has found safe and effective for widespread use calls for immediate review.”
More than 90% of corn, cotton, soybeans, sugarbeets, and canola “are produced using … glyphosate-tolerant seeds,” the ag groups say, warning that “any restriction to glyphosate threatens to increase the costs to farmers, prices to consumers, and the availability of some foods. Without access to glyphosate, crop losses will inevitably occur, leading to further supply chain disruptions, food shortages, and higher consumer prices.”
The groups say that without use of the herbicide, conservation efforts will suffer.
"The ability to use herbicides to manage weeds plays a key role in reducing reliance on conventional tillage techniques," they say. "This in turn helps sequester greenhouse gasses in the soil, reduce tractor fuel use, protect soil microbes, increase precious water retention, reduce erosion, and maximize nutrient cycling."
The other groups on the brief are” American Sugarbeet Growers Association, Cherry Marketing Institute, Florida Fruit and Vegetable Association, International Fresh Produce Association, National Association of Wheat Growers, National Corn Growers Association, National Cotton Council of America, National Sorghum Producers, North American Blueberry Council, and Western Growers.
The Supreme Court has given parties including the Missouri man whose verdict is at issue until June 9 to respond to the petition and the amicus briefs.
This article has been edited to correct the amount of the verdict in the Missouri Court of Appeals case.
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