A Tort Roundup at the Supreme Court
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A Tort Roundup at the Supreme Court
The plaintiffs bar claims state courts can nullify federal law.
By The Editorial Board, WSJ
April 24, 2026
Can a state jury nullify federal law? Pare back the legal weeds, and that’s the question before the Supreme Court on Monday in a major tort case (Monsanto v. Durnell) involving the pesticide glyphosate, sold as the Roundup brand.
Plaintiffs have filed tens of thousands of lawsuits in state courts alleging that Monsanto’s Roundup weed-killer gave them cancer. The Environmental Protection Agency, which regulates pesticides, has evaluated glyphosate over five decades and concluded it doesn’t cause cancer.
But the International Agency for Research on Cancer (IARC) said in 2015 it was “probably carcinogenic to humans” based on “limited evidence,” mainly from animal studies. This spurred the lawsuits against Monsanto (now owned by Bayer) under state tort law for failing to warn about alleged cancer risks. Although Bayer has prevailed in many cases, plaintiffs have won more than $4 billion in damages. The company’s liability could swell as law firms recruit more plaintiffs.
While mass torts are a broad business scourge, the glyphosate lawsuits also subvert the regulatory scheme that Congress created for pesticides. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) says a state cannot enact a requirement “for labeling or packaging in addition to or different from those required” by the EPA.
Congress passed the pre-emption law in 1972 because states were enacting a patchwork of conflicting labeling regimes that interfered with interstate commerce. The law strikes a federalist balance by letting states ban pesticides within their borders while prohibiting them from mandating warnings beyond those required by the EPA.
Plaintiff attorneys are trying to subvert the law. The case before the High Court involves Missouri plaintiff John Durnell, who was awarded $1.25 million in damages. Monsanto appealed, arguing that his claim is pre-empted by federal law.
Since EPA has determined that glyphosate isn’t carcinogenic, adding a cancer warning without EPA approval would have resulted in illegal misbranding of the product. But Mr. Durnell argues that only the federal law—not regulation taken by EPA under the law—can pre-empt state claims, though there’s no practical difference in this case.
As Monsanto stresses, “the verdict in Durnell’s favor on his failure-to-warn claim necessarily required the jury to find that state law required Monsanto to include in Roundup’s label a warning that EPA has deemed unsupported and unnecessary under FIFRA.”
The Court held in Riegel v. Medtronic (2008) that a similarly worded pre-emption provision in a medical device law barred state tort claims for products whose marketing materials were approved by the Food and Drug Administration. Perhaps this is why the Roundup plaintiffs pivoted to a novel argument in their brief for the Supreme Court.
They now assert that federal pre-emption of state torts somehow runs afoul of the Court’s Loper Bright precedent (2024), which overturned so-called Chevron deference by holding that judges need not defer to regulatory agencies’ interpretation of laws. They claim Monsanto wants the EPA, not judges, to interpret the pesticide law.
On the contrary. Monsanto wants judges to interpret the law as written—since it expressly pre-empts state regulation. The plaintiffs try to mislead Justices by claiming that a ruling for Monsanto would give the EPA “Chevron-like powers.” But it’s the trial lawyers who are seeking Chevron-like powers to regulate pesticides for all of America.
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