Supreme Court Should End Roundup Failure-To-Warn Litigation
On January 16, 2026 the Supreme Court granted certiorari in Monsanto Co. v. Durnell (24-1068) to address the following question:
“Whether the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA] preempts a label-based failure-to-warn claim where EPA has not required the warning.”
The answer to this question will affect state-law personal injury claims alleging that Monsanto (now Bayer) failed to include a cancer-warning on the U.S. EPA-regulated labels for its Roundup herbicide products.
As it did at the petition stage, ALF has filed an amicus brief urging the Court to reaffirm, and in so doing clarify, its holding in Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005), that FIFRA expressly preempts pesticide label-based, state-law failure-to-warn claims.
The author of the amicus brief, ALF Executive Vice President & General Counsel Lawrence Ebner, recently wrote a Law360 guest article, Justices’ Monsanto Decision May Fix A Preemption Mistake, which not only discusses the importance of Monsanto Co. v. Durnell, but also his decades-long experience with, and perspective on, the FIFRA failure-to-warn preemption issue.
Whether the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA] preempts a label-based failure-to-warn claim where EPA has not required the warning.
Additional Background:
Section 24(b) of FIFRA, 7 U.S.C. § 136v(b), titled “Uniformity,” expressly preempts a State from imposing pesticide labeling requirements that are “in addition to or different from” those imposed under the Act by EPA. The Supreme Court held in Bates that § 136v(b) encompasses state-law, pesticide-related, failure-to-warn claims because they are “premised on common-law rules that qualify as ‘requirements for labeling’. . . they set a standard for a product’s labeling that the . . . label is alleged to have violated by containing . . . inadequate warnings.” 544 U.S. at 446. Despite the expansive language of § 136v(b), Bates carved out an exception for a “state-law labeling requirement . . . if it is equivalent to, and fully consistent with, FIFRA’s misbranding provisions.” Id. at 447.
From the day Bates was decided two decades ago, the personal injury bar has distorted and exploited this “‘parallel requirements’ reading of § 136v(b),” id., in an effort to render the preemption provision almost meaningless. According to the plaintiffs’ bar, § 136v(b) does not apply as long as a State imposes upon a manufacturer a general duty to warn about a product’s risks—a duty that is “parallel” to FIFRA’s general prohibition against distributing products that are “misbranded” due to inadequate label warnings. This simplistic argument fails to take into account the product-by-product manner in which EPA actually regulates pesticide products and their active ingredients and determines, based on scientific studies, what specific label warnings are, and are not, required.
The heavily promoted Roundup litigation, involving tens of thousands of pending personal injury claims, is an egregious example of the personal injury bar’s pursuit of a product liability bonanza based on misinterpretation of Bates. EPA has studied Roundup’s active ingredient—glyphosate—extensively, and has repeatedly concluded that it does not cause cancer in humans. In fact, EPA has notified glyphosate producers that adding a cancer warning to the labeling of pesticide products containing glyphosate would be false and misleading, and would violate FIFRA’s prohibition against distribution of misbranded pesticides. Yet, despite EPA’s science-based findings, the Roundup litigation is predicated on Monsanto’s failure to include a cancer warning on Roundup product labeling.
ALF’s Amicus Brief:
ALF’s amicus brief explains that through § 136v(b), FIFRA promotes national labeling uniformity by vesting EPA with sole authority to regulate the content of a pesticide product’s labeling, including warnings. The “parallel requirements” exception is not a license to impose a state tort duty to provide an additional label warning—especially since EPA repeatedly has rejected as scientifically unwarranted the cancer warning on which virtually all Roundup failure-to-warn claims are predicated. Instead, Bates indicates that this narrow exception merely enables imposition of a state-law remedy (in the absence of a federal remedy) for violation of federal labeling requirements, which are imposed by EPA on a product-specific basis.
A comparison between EPA and state-law warning requirements cannot be conducted at the 30,000-foot level, i.e., at a high level of generality that is oblivious to EPA’s imposition of labeling requirements for a specific product such as Roundup or active ingredient such as glyphosate. A state tort duty to provide a Roundup cancer-related label warning that EPA repeatedly has rejected as scientifically unwarranted, and that EPA has cautioned glyphosate registrants would be false and misleading and a violation of FIFRA’s misbranding standards, cannot possibly be parallel or equivalent to, or in any way consistent with, EPA’s labeling requirements for Roundup.
Contact:
Email ALF Executive Vice President & General Counsel Lawrence Ebner.
