A crucial crossroads for product safety
Jason Spilkin February 2026
In the American justice system, the path to resolution can often feel complex and winding. It is sometimes said that you get the justice you can afford but the story of Monsanto (now majority-owned by Bayer) proves that money does not buy justice. Federal litigation typically begins at district courts, from which decisions may be appealed to circuit courts. Last chance saloon is the Supreme Court (“SCOTUS”), but they grant roughly only two percent of petitions. For Bayer, the result has been years of legal limbo after being found liable in California but not in Pennsylvania under the same federal law. Fortunately, SCOTUS recently accepted their petition, promising to bring much-needed clarity this year to a thorny legal puzzle.
At the heart of the Supreme Court's decision lies a pivotal question: Do federal labelling rules under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) override state laws that demand warnings about product dangers? Under the US constitution, states can craft their own laws - in addition to, but not in conflict with, federal laws. However, when there is a conflict, federal law overrides state law. Pre-emption analysis involves courts interpreting where federal authority ends and state authority begins - a line that is not always clear.
The saga started back in 2015 when the International Agency for Research on Cancer published a study classifying glyphosate as “probably carcinogenic”. It's worth noting that this classification also included everyday items such as red meat, hot beverages (tea and coffee), talcum powder and high-temperature frying, to name a few. Following this, in 2017, California listed glyphosate as a substance “known to cause cancer” and imposed new labelling requirements across the state. Thankfully, California spared Starbucks from labelling lattes!
However, the Environmental Protection Agency (EPA) is the federal authority tasked with overseeing the safety and labelling of herbicides, including those sold in California. FIFRA explicitly states that labelling requirements should be "uniform" nationwide, preventing states from imposing additional or different rules. The EPA concluded its latest fifteen-year review, re-registering glyphosate in 2019 without a cancer warning. Moreover, Monsanto may not unilaterally alter a label once the EPA has registered it. Along those lines, the 3rd Circuit Court concluded in 2024 that California’s labelling laws conflicted with federal law and were pre-empted.
Notwithstanding the aforementioned federal framework, a California jury ruled in 2019 that Monsanto was liable for “failure to warn” consumers, finding that Roundup substantially contributed to Edwin Hardeman's cancer. This was despite conflicting evidence that most Non-Hodgkin's Lymphoma cases have no known cause, and Mr. Hardeman had other risk factors. The jury’s decision opened the floodgates to tort class action lawsuits nationally, severely impacting Bayer's stock value. To date, Monsanto has set aside over $15 billion and already paid out around $9 billion in settlements.
The Hardeman case went to appeal in 2021, and surprisingly, the jury's verdict was upheld by the 9th Circuit. The court referenced FIFRA's "misbranding" provision, which states that a herbicide can be considered misbranded if its label lacks necessary warnings to protect health. They reasoned that California's labelling requirements were essentially parallel requirements, equivalent to FIFRA’s federal misbranding provisions, meaning state damages claims were not pre-empted.
Fast forward to 2025, after the circuit courts reached conflicting conclusions, the SCOTUS asked the US Solicitor General for a view. Rather than recommending SCOTUS review to solve the “circuit split”, he sided strongly with the 3rd Circuit’s decision that state claims are pre-empted. He noted that the situation echoes a past Supreme Court case involving FIFRA, which differentiated between labelling requirements for product efficacy, as compared to safety.
In 2005, SCOTUS ruled, in Bates versus Dow, that product warranties are voluntarily placed on a label and cannot pre-empt state claims because they are not a requirement. Rather, warranties relate to efficacy which is not reviewed by the EPA. At that time, the court noted that "a requirement is a rule of law that must be obeyed”. The distinction is critical: Monsanto's current case involves safety labelling, which is a FIFRA requirement related to safety – which is reviewed and approved by the EPA.
The EPA has a long history of evaluating glyphosate. As far back as 1985, lab studies showed a tenuous cancer link in male mice (at very high doses), leading the EPA to initially classify it as a possible human carcinogen. However, more comprehensive studies have subsequently affirmed glyphosate's safety when used as directed in real-world applications. Consequently, the EPA and other G-7 global regulators (in the EU, Australia, Canada, Germany, and New Zealand) have since reclassified glyphosate for general use, concluding that the body of scientific evidence does not show it causes cancer.
Winston Churchill famously remarked that democracy is the worst form of government, except for all the others. A similar sentiment might be applied to glyphosate when considering alternative herbicides. Monsanto developed Roundup in the 1970s, and it's now the world’s most widely used weedkiller. The story goes that after noticing weeds growing near a waste pool, someone hit upon the idea of glyphosate-resistant “Roundup Ready” seeds, which allowed farmers to kill weeds without harming their corn crop, dramatically boosting yields. Farmers value Roundup for its affordability, effectiveness against a broad range of weeds, and ability to reduce the need for ploughing – which saves fuel, fertilizer, and helps preserve soil health. It's also considered relatively environmentally friendly; it keeps carbon dioxide in the soil, reduces tractor emissions, and dissipates quickly without harming wildlife. Some estimates suggest that banning glyphosate could lead to a significant drop in crop yields, driving up global food prices and poverty.
Ultimately, this Supreme Court decision will be a landmark moment, providing essential clarification on whether the EPA or a state jury in California hold final say on safety and warning labels for substances like glyphosate. SCOTUS Justice Alito opined in a similar situation: “Tragic facts make for bad law” - a sentiment that seems profoundly true in this complex and emotionally charged case.
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