Roundup ruling fuels fears of broader shield for manufacturers

The Supreme Court ruling in favor of Roundup manufacturer Monsanto and its parent company Bayer AG is raising alarm among plaintiffs' attorneys, who warn the decision could reshape product liability litigation and weaken state consumer protections, including California's Proposition 65.

On Thursday, the court held that Bayer, which acquired Monsanto in 2018, cannot be held liable under state law for failing to warn consumers about an alleged cancer risk when federal regulators did not require such a warning on the product label.

The case centered on John Darnell, a Missouri gardener who developed non-Hodgkin lymphoma after using Roundup and was awarded $1.25 million at trial.

Despite the ruling, plaintiffs' attorney Robin L. Greenwald, a partner at Weitz & Luxenberg and co-lead counsel in the Roundup multidistrict litigation, said the decision is unlikely to derail existing lawsuits.

"I don't think it extinguishes anyone's litigation," Greenwald said. "Monsanto still didn't test the product, so in many states, failure to test is under design defect claims, so there are many ways you can still litigate this case and bring in all the evidence."

Greenwald, who filed the first Roundup lawsuit in 2015, criticized the court's decision and praised the dissenting justices as "brilliant" and "right on point."

"There are numerous ways that Bayer and Monsanto tell people, falsely, that Roundup is perfectly safe to use," she said.

She pointed to the companies' marketing at agricultural trade shows as one example.

"They tried to sell their products to farmers, so you ask the farmer and Monsanto told farmers that Roundup was safe enough to drink," Greenwald said. "So, I do think that doesn't distinguish those cases, but it might make them a little harder to bring in the first instance."

A Monsanto spokesperson said the company intends to seek dismissal of all pending cases affected by the Supreme Court's ruling, including failure-to-warn claims and others based on similar legal theories.

The spokesperson also argued that the decision, combined with scientific evidence supporting glyphosate's safety and Monsanto's recent trial victories, will make future lawsuits more difficult to pursue.

The ruling also prompted debate over its potential implications for California's Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, which requires businesses to warn consumers about exposure to chemicals known to cause cancer, birth defects or other reproductive harm.

Dennis E. Raglin, an attorney at Carlton Fields, said the decision is likely to have significant implications beyond glyphosate because it reinforces federal preemption arguments for chemicals regulated by agencies such as the U.S. Environmental Protection Agency.

"I think there are some Prop. 65 chemicals regulated by federal agencies, particularly EPA, that could be vulnerable to a Monsanto preemption challenge," Raglin responded in an email.

He noted the Supreme Court's decision follows a series of recent federal court victories in which judges barred enforcement of Proposition 65 warning requirements for chemicals including acrylamide, titanium dioxide, Cocamide DEA and glyphosate, concluding that the required warnings violated companies' First Amendment rights because they were not purely factual or uncontroversial.

Taken together, Raglin said, those rulings could encourage defendants to challenge Proposition 65 claims on both preemption and constitutional grounds.

"Glyphosate is an example of a Prop. 65 chemical being unenforceable on two constitutional grounds," he said. "This would give defendants two separate grounds to challenge and force plaintiffs to overcome two strong defenses."

Raglin also said the decision could embolden California state courts to more readily entertain preemption arguments, an area where they have historically been reluctant to intervene.

"It is logical to expect challenges to other Proposition 65-listed chemicals that are also regulated by federal agencies," he said, pointing to Bisphenol S (BPS) as one example because it is regulated by both the EPA and the Food and Drug Administration.

Carl Cranor, a retired University of California, Riverside professor and former member of California's Proposition 65 Science Advisory Panel, said industries have long opposed the law because of its public disclosure requirements.

"Industry really doesn't like Prop. 65, because it flags their products as being risky or dangerous to the public," Cranor said. "They may go to greater lengths to try to undermine it."

He said the decision could encourage companies to focus their efforts on influencing federal regulators rather than complying with stricter state standards.

"It's not crazy to believe that this will give companies incentives to try to undermine what states do by putting additional pressure on EPA evaluations," Cranor said. "With the Trump administration, they will have easy moving."

Shant A. Karnikian, managing partner of Kabateck LLP, said the ruling could significantly limit consumers' ability to recover damages when federal regulators decline to require warnings.

"The ruling hands corporate defendants a shield to hide behind whenever regulators fail to act," Karnikian wrote in an email. "It leaves victims and their families without a remedy through no fault of their own. It basically risks gutting any case arising out of a federally regulated consumer product which harms people so long as the label was approved or a warning wasn't required by federal regulators."