In a widespread campaign the pesticide industry is pursuing actions at the U.S. Environmental Protection Agency (“EPA”) and in the courts, the Congress and state legislatures seeking to establish label preemption that would eliminate failure to warn claims brought under state law. Prompted primarily by the successful suits against Monsanto alleging that Round Up® label failed to warn users that glyphosate, which was for many years the active ingredient in the herbicide Round Up®[1], causes non-Hodgkins’s lymphoma.
The Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) states that “[A] state shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under FIFRA.[2] This provision was addressed by the U.S. Supreme Court in Bates v. Dow Agrosciences.[3] The Court clarified that state requirements include state tort common law. Nonetheless it held that while state labeling or packaging requirements that differed from those imposed by FIFRA are preempted, additional requirements that did not differ from FIFRA requirements were not preempted. It also held that other types of claims, such defective design or breach of express warranty, were not labeling and thus not preempted.
Tort Litigation
Despite the door seemingly left open by the Court in Bates, the pesticide industry had been under the impression that the decision would greatly limit future state law claims. The course of events since then has proven otherwise. Monsanto, now owned by Bayer, has faced tens of thousands of suits in state and Federal courts over the glyphosate lymphoma claims. Estimates are that Bayer has paid out in the range of $10 billion in the last five years.
The leading victory for plaintiffs is Hardeman v Monsanto Company.[4] The 9th Circuit Court of Appeals held that Hardeman’s failure to warn claim imposed duties consistent with FIFRA. It also upheld the District Court’s qualification of the plaintiff’s expert under the test established by the Supreme Court in Daubert v. Merrell Dow Pharmaceutical.[5] Monsanto then filed a Petition for Certiorari with the Supreme Court. As it sometime does when a case implicates Federal law but the U.S. is not a party, the Court asked the U.S. Solicitor General for a recommendation as to whether the Court should accept the case. The Solicitor recommended against accepting the case and the Court did not.
Subsequent to Hardeman, in a major victory for Monsanto, the 3rd Circuit Court of Appeals in Schaffner v. Monsanto[6]held that failure to warn claims are expressly preempted by FIFRA. Seizing on this opinion, Monsanto filed a new Petition for Certiorari with the Supreme Court seeking review of Durnell v. Monsanto[7], a Missouri case which it lost. At the urging of the U.S. Solicitor General, the Court granted the Petition on January 16, 2026. The case will be argued April 27th, indicating that a decision will be issued this term, which ends in June. In a recent order the Court allowed the U.S. to participate in the oral argument in support of Monsanto.
An increasing number of tort actions have also been brought asserting that the highly acutely-toxic herbicide paraquat causes Parkinson’s disease. A series of actions have been consolidated under Federal Multidistrict Litigation procedures in the Southern District of Illinois[8]. The Court continues to extend deadlines while the parties engage in settlement discussions. There are also numerous state court paraquat actions proceeding, particularly in Pennsylvania. The same preemption issues are present in these cases, and proposed plaintiffs’ experts in these matters will face qualification hurdles. At the same time Syngenta, the original registrant of paraquat, has announced that it is ceasing production of the highly acutely toxic herbicide.
Congressional Action
Congressional efforts have also been aimed at reducing or eliminating tort liability of pesticide registrants. A renewal of the so-called “Farm Bill[9]” contains several provisions related to pesticide regulation. It contains a preemption clause which tracks the relief sought by Monsanto from the Supreme Court.[10] It also precludes local regulation of pesticides, thus reversing the holding in Wisconsin Public Intervenor v Mortier,[11] which held that under FIFRA as it presently exists the authority of local governments to regulate pesticides is a matter of state law. The House Agriculture Committee sent the bill to the full House on March 3, 2026.
A provision was inserted as section 453 in the 2026 Interior and Environment 2026 appropriation bill which would bar the use of any appropriated funds:
“to issue or adopt any guidance or any policy, take any regulatory action, or approve any labeling or change to such labeling that is inconsistent with or in any respect different from the conclusion of (a) a human health assessment performed pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.); or (b) a carcinogenicity classification for a pesticide.
While the impact of this proposed provision was uncertain, in the end advocates representing the so-called Make America Healthy Again (“MAHA”) movement succeeded in having this provision removed from the bill.
In a diametrically opposed action. Senator Booker of New Jersey introduced the Pesticide Injury Accountability Act.[12] It would establish a Federal private right of action against a pesticide registrant for injury to person or property. The act would provide for punitive damages and declares that it would not preempt any state law claim. The bill appears unlikely to proceed in the current Congress.
State Legislative Action
Pesticide registrants have also been active on the state legislative front. Coordinated efforts have been directed at multiple states seeking the elimination of state tort claims, primarily failure to warn claims. North Carolina, Georgia and Kentucky have passed such legislation. The most public attention was directed to the proposal in Iowa, which failed, as did proposals in Florida, Mississippi, Minnesota, Oklahoma, Tennessee and Wyoming. If the Supreme Court rules for Monsanto, these enactments will become moot. If not, individuals in any states which enacted such legislation will have lost the right to sue while that right remains available in all other states.
EPA Petition
The Attorneys General of the States of Nebraska, Iowa, Alabama, Arkansas, Georgia, Indiana, Louisiana, Montana, North Dakota, South Carolina, and South Dakota have filed a Petition[13] seeking to have EPA promulgate a rule declaring that “any state labeling requirements inconsistent with EPA’s findings and conclusions from its human health risk assessment on human health effects, such as a pesticide’s likelihood to cause cancer, birth defects, or reproductive harm, constitute misbranding under FIFRA.” It is likely to be months before EPA moves to solicit public input on the Petition.
Conclusion
It is not clear how these conflicts will be resolved. Based upon the history of the prior cert denial and the present granting of a similar petition, the inference arises that the Court granted review in the Durnell case in order to strengthen preemption. Were that to occur it is highly likely that all the pending glyphosate and paraquat cases would be dismissed. If the Court rules against Monsanto, litigation will likely ensue over the scope of Congressional legislation.
[1] Glyphosate was since its market entry the active ingredient in all versions of Round Up®. It is no longer the active ingredient in non-agricultural versions of Round Up®.
[2] 7 USC §136v(b)
[3] 544 U.S. 431 (2005)
[4] 997 F.3d 9419th (Cir. 2021)
[5] 509 U.S. 579 (1993)
[6] 113 F.4 364 (2024)
[7] Missouri Supreme Court, No. SC100975
[8] Docket No. 3:21-md=3004
[9] The Farm, Food and National Security Act of 2026, H.R. 7567
[10] Section 10205.
[11] 501 U.S. 597 (191).
[12] S. 2324
[13] EPA-HQ-OPP-2024-0562 (filed August 7, 2024.)