WASHINGTON — The U.S. Solicitor General said in a court filing Monday the Supreme Court should consider granting a review of the petition filed by Bayer to curtail product liability lawsuits connected to use of the weedkiller Roundup.

SCOTUS considered Bayer’s petition for writ of certiorari earlier this year but asked Solicitor General D. John Sauer for additional input on the case, Monsanto Co. vs. John L. Durnell.

Last year, lawyers for Bayer and the defendants asked SCOTUS to resolve a split in the lower courts on whether federal labeling laws should pre-empt state labeling laws. Durnell’s attorneys allege he contracted non-Hodgkins lymphoma through his use of Roundup.

The Missouri Court of Appeals and U.S. Court of Appeals for the 9^th and 11^th circuits, and state appellate courts in California and Oregon, have said federal law does not preempt state laws. But in another case, the U.S. Court of Appeals for the 3rd Circuit ruled the opposite way.

The Solicitor General’s amicus brief states that under Missouri law, a manufacturer is strictly liable for harms caused by an “unreasonably dangerous” product if the manufacturer “did not give adequate warning of the danger.” 

In determining whether a particular product is unreasonably dangerous, a Missouri jury doesn’t have to consider the product’s economic and social benefits because the concept of “unreasonable danger” is presented to the jury, “as an ultimate issue without further definition.”

Sauer noted that under FIFRA, a manufacturer is only required to add warnings that are “necessary and adequate to protect human health and the environment,” the brief says. “And in determining whether a particular pesticide will pose an unreasonable risk to man or the environment, the EPA takes into account the economic, social and environmental costs and benefits of the use of the pesticide.

“Because the jury below was not instructed to account for such benefits, the jury did not apply the same substantive standard that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) instructs EPA to apply in determining whether a pesticide is misbranded.”

Bayer Waits for Decision

In another Roundup case in 2021, Monsanto Co. v. Hardeman, the Solicitor General argued didn’t preempt state-law failure-to-warn claims, which have been at the heart of the liability lawsuits. 

Since then, the brief said, a conflict has developed among the courts of appeals as to whether FIFRA, “expressly preempts state-law tort claims premised on petitioner’s failure to warn its customers about potential cancer risks created by use of Roundup," the U.S. told the court on Monday.

“Due to the 3^rd Circuit’s intervening decision in Schaffner vs. Monsanto and the change in administration, the U.S. has re-examined the arguments it pressed before this court in Hardeman and has returned to its previous position as to the scope of FIFRA preemption.”

Bayer said in a statement the company is “pleased” with the Solicitor General’s support and agrees with the company’s arguments on preemption. 

A spokesperson said Bayer believes the backing of the U.S. government will be important to the Supreme Court’s consideration of its petition.

“The support of the U.S. Government is an important step and good news for U.S. farmers, who need regulatory clarity. The stakes could not be higher as the misapplication of federal law jeopardizes the availability of innovative tools for farmers and investments in the broader U.S. economy,” said Bayer CEO Bill Anderson.

Bayer points out that similar preemption language to FIFRA is included in other federal statutes, such as those regulating medical devices, poultry products, meat and motor vehicles. 

“It is time for the U.S. legal system to establish that companies cannot be punished under state laws for complying with federal label requirements,” the company said.

Bayer said a positive ruling on the preemption issue could help the company close tens of thousands of Roundup cases that are, “overwhelmingly based on claims grounded in failure-to-warn theories. The EPA and every other regulator worldwide that has independently assessed the safety of glyphosate, the active ingredient in most Roundup products, has concluded it can be used safely.”

Bayer said it’s working to “significantly contain the litigation” around Roundup by the end of 2026.

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