WASHINGTON — The Supreme Court appeared divided Monday on whether to block thousands of lawsuits alleging the makers of the herbicide Roundup failed to warn people it could cause cancer.
The case came before the judge after a major lawsuit that included a multibillion-dollar judgment against Bayer, the global pesticide maker that owns Roundup maker Monsanto.
Several judges seemed sympathetic to the company’s argument that it could not sue under state law because federal regulators determined Roundup was unlikely to cause cancer. But some went after the lawyers, wondering if it would unfairly block the state’s response to changes in research.
Roundup maker Monsanto is backed by the Trump administration, and its legal position is at odds with some allies in the Make America Healthy Again movement, which seeks to curb pesticide use.
The case in this court was brought by a Missouri man named John Darnell. The suit says he developed a cancer called non-Hodgkin’s lymphoma after using Roundup in parks in the historic St. Louis area and working as a “sprayer” for his neighborhood association for more than 20 years.
The jury agreed that the company failed to warn him about the possible cancer risks and ordered him to pay $1.25 million. This is one of thousands of similar lawsuits involving billions of dollars in damages.
There is still a heated debate about cancer and glyphosate, the main ingredient in Roundup. The World Health Organization’s International Agency for Research on Cancer classified the chemical as “possibly carcinogenic” in 2015, but the Environmental Protection Agency has determined it is unlikely to be carcinogenic to humans when used as directed.
The agency approved the label without the cancer warning, but Bayer contends it must follow federal standards, not the state law that Darnell and others sued.
The EPA reviews labeling decisions every 15 years, which can be a relatively long period of time in terms of scientific progress, Judge Ketanji Brown Jackson said.
Chief Justice John Roberts questioned whether waiting for EPA review would tie state courts’ hands. “Through that long process, can’t the state do anything about information that suggests there are risks that aren’t listed on the label?” he asked.
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Meanwhile, Darnell’s lawyers argue that federal law does not prevent Bayer from issuing warnings about possible cancer risks on its products under state law.
But Justices Brett Kavanaugh and Elena Kagan both seemed concerned that it could make it harder for companies to face liability under a thicket of different state laws, potentially undermining the purpose of federal regulation. “Do you think that’s uniformity when each state can demand different things?” Kavanaugh said.
Bayer disputes the cancer claims, but has set aside $16 billion to settle the case and proposed a large settlement earlier this year. At the same time, it was trying to persuade states to pass laws banning new lawsuits, and several states agreed.
The company has faced more than 100,000 Roundup claims to date, most of them from home users. The use of glyphosate in Roundup sold in the U.S. residential lawn and garden market has been discontinued. The company said if the litigation drags on, it may need to consider removing glyphosate from U.S. agricultural markets.
The American Farm Bureau Federation said in court documents that removing it from the market would pose an “immediate and catastrophic risk to the U.S. food supply” at a time when the industry is already under pressure.
Environmental groups say Bayer wants to keep jurors out of the lawsuit because of its loss in state court.
Meanwhile, pesticides have created a rift between the government and members of the MAHA movement, led by Secretary of Health Robert F. Kennedy, who were also unhappy with an executive order aimed at increasing production of glyphosate.
President Kennedy himself acknowledged that the executive order was necessary for food supply and national security reasons, but he has repeatedly said that glyphosate causes cancer.
Dozens of MAHA activists and supporters gathered outside the Supreme Court on Monday in what they called a “People vs. Toxic” rally to denounce Monsanto’s efforts to protect itself from lawsuits.
The Supreme Court is expected to issue a decision by the end of June.
Associated Press writer Ari Swenson in New York contributed to this report.
