11
Mar
Monsanto Brief Introduced as U.S. Supreme Court Considers Liability Immunity for Pesticide Manufacturers
(Beyond Pesticides, March 11, 2026) The Monsanto Company, founded in 1901 and acquired by the multinational corporation Bayer AG in 2018, submitted its opening brief to the Supreme Court of the U.S. (SCOTUS) last month, seeking liability immunity from lawsuits filed by product users who have been harmed but not warned about potential product hazards. The question before SCOTUS is: “Whether the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq., preempts a state-law failure-to-warn claim concerning a pesticide registered by the U.S. Environmental Protection Agency (EPA), where EPA 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 upheld EPA and state registration of pesticides as a floor of protection, without releasing manufacturers of the responsibility to warn for potential harm that is not required by EPA. 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 of or should have known. The Missouri case before the Supreme Court, Durnell v. Monsanto, on the cancer causing effects of the weed killer glyphosate (RoundupTM) resulted in a jury verdict (in 2023) of $1.25 million and the total number of jury verdicts and settlements may amount to over $10 billion in liability if the Supreme Court upholds the lower courts and hundreds of thousands of other plaintiffs make the same claim.
Bayer has a multi-pronged strategy to shield pesticide manufacturers from liability for failure-to-warn, including at the Supreme Court, in Congress, and in state legislatures. Last week, Bayer successfully pushed for a Farm Bill (the Farm, Food, and National Security Act of 2026, H.R. 7567), which was reported out of the Agriculture Committee in the U.S. House of Representatives, that gives the pesticide industry immunity from failure-to-warn liability. The industry, in lobbying for its vested economic interest, has amassed a large support structure, which includes key officials in the Trump administration and a team of lobbyists and lobbying (“government relations”) firms. According to a new report by U.S. Right to Know, Tracing Bayer’s ties to power in Trump’s Washington, there have been significant lobbying investments by the multinational pesticide corporation just in the past year, including:
- “At least $9.19 million on federal lobbying in [2025]”;
- “16 key administration officials with ties to Bayer’s lobbying or legal network. Bayer and its lobbyists have access to people in power at the White House, U.S. Department of Agriculture, the Environmental Protection Agency and even those in high level positions closest to Trump”;
- “45 people registered to lobby for Bayer under the Lobbying Disclosure Act, and at least 13 outside lobby firms – seven of which are now among the highest-paid firms in D.C”; and,
- “More than 30 senior officials at lobby firms retained by Bayer have direct ties to Trump, having worked in one or both of his administrations or political campaigns.”
The authors point out that, across the four main trade and agribusiness groups that rely on pesticide products for their business models (American Chemistry Council, CropLife America, National Corn Growers Association, and American Soybean Association), a “combined $22 million on federal lobbying in 2025, with 12 more outside lobby firms and 79 more registered lobbyists in the fourth quarter.” Please also see here for USRTK’s newly published Bayer Lobbying Tracker to follow the money.
Advocates, including farmers, farmworkers, rural communities, public health and medical professionals, and environmentalists, continue to call on their elected officials to oppose pesticide liability shields in their state legislature and in Congress. Learn more at Beyond Pesticides’ Failure-to-Warn resource hub.
Review
The main arguments in the Monsanto brief include:
- “FIFRA Expressly Preempts Durnell’s Failure-To-Warn Claim”;
- “FIFRA Impliedly Preempts Durnell’s Failure To-Warn Claim”; and,
- “Preemption Of Durnell’s Claims Is Critical To American Agriculture And Innovation.”
- Court Precedent. In terms of the first argument on express preemption, Monsanto alleges that the Federal Insecticide, Fungicide, and Rodenticide Act (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. They also allege 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. (Please see the Bates Decision section below for additional details.)
- The law allows injured parties to seek a remedy. The second argument on implied preemption emerges from the logic that the corporation (Monsanto) cannot add a cancer warning without EPA approval, otherwise it could be constituted as a “misbranded” 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 power of the manufacturer over the label, finding, “Successful [tort] actions of this sort may lead manufacturers to petition EPA to allow more detailed labelling of their products [emphasis added].”
- Sustainable alternatives are productive and profitable. The third argument states that preemption of state-level failure to warn claims is necessary because farmers’ livelihood is 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 claims that EPA has been consistent with what it purports to be the overall conclusion “that glyphosate does not pose a cancer risk and EPA’s express rejection of IARC’s [International Agency for Research on Cancer] 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 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,” thus calling 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).
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 U.S. government argues that certiorari should be granted on three grounds:
- The Missouri Court of Appeals was incorrect in their decision in Durnell v. Monsanto (2023) because they argue 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.)
A Pesticides and You article (2005) by H. Bishop Dansby 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 under the Federal Insecticide, Fungicide, and Rodenticide Act (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.”
As previously reported by Beyond Pesticides, the U.S. Supreme Court spoke with clarity in Bates:
“The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984) [Footnote 25]. Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items. See Mortier, 501 U. S., at 613 (stating that the 1972 amendments’ goal was to “strengthen existing labeling requirements and ensure that these requirements were followed in practice”). Particularly given that Congress amended FIFRA to allow EPA to waive efficacy review of newly registered pesticides (and in the course of those amendments, made technical changes to §136v(b)), it seems unlikely that Congress considered a relatively obscure provision like §136v(b) to give pesticide manufacturers virtual immunity from certain forms of tort liability. Overenforcement of FIFRA’s misbranding prohibition creates a risk of imposing unnecessary financial burdens on manufacturers; under-enforcement creates not only financial risks for consumers but risks that affect their safety and the environment as well.”
In December 2023, farmworker organizations and Beyond Pesticides, represented by the Center for Food Safety, filed a petition with EPA urging the agency to remove glyphosate from the market after having won a 2022 court decision forcing EPA to redo its science evaluation.
That 2022 court decision in the Court of Appeals for the Ninth Circuit ruled that EPA’s 2020 approval of glyphosate was unlawful. The court voided EPA’s “interim registration review” decision approving the continued use of glyphosate, issued in early 2020. “EPA did not adequately consider whether glyphosate causes cancer and shirked its duties under the Endangered Species Act (ESA),” the court wrote in its opinion. At the time of the decision, Beyond Pesticides said: “EPA’s failure to act on the science, as detailed in the litigation, has real-world adverse health consequences for farmworkers, the public, and ecosystems. Because of this lawsuit, the agency’s obstruction of the regulatory process will not be allowed to stand, and EPA should start shifting food production to available alternative non- and less-toxic practices and materials that meet its statutory duty.” As reported by the Center for Food Safety, “[T]he court struck down, or vacated the human health assessment. The court also required that EPA redo and/or finish all remaining glyphosate determinations by an October 2022 deadline, or within four months. This includes a redone ecological toxicity assessment, a redone costs analysis of impacts to farmers from pesticide harms, as well as all Endangered Species analysis and mitigation.” (See Daily News here.)
Call to Action
As the Farm Bill moves to the House Floor, Beyond Pesticides will strive to remove Title X, Part 1 of the legislation. Updates will be provided with background information as Farm Bill legislation moves through the U.S. Senate.
In the meantime, consider the following action opposing the allowance of an unregistered PFAS pesticide under an “emergency” waiver provision in federal pesticide law. Policy and toxicology are slated to collide as EPA considers allowing the use of a PFAS pesticide by invoking an emergency waiver process. If authorized, EPA’s decision will permit the use of an unregistered pesticide under an emergency waiver provision—in this case, an emergency caused by weed resistance to weed killers (herbicides) on the market.
EPA is accepting public comments until March 16, 11:59 pm EDT. Beyond Pesticides is urging the public to object to EPA approval by writing to EPA and Congress stating that herbicide resistance is not an emergency and PFAS chemicals must not be broadcast in the environment.
You can continue to stay apprised of the most pressing developments on various issues and campaigns by signing up for Weekly News Update and Action of the Week—including a call to tell your governor to adopt policies that support organic land management and ecological balance.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Sources: Bayer; U.S. Right to Know
Thanks for this detailed breakdown, everyone should be aware of these legal battles.
March 11th, 2026 at 5:44 am