One label or many

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MARY REICHARD, HOST: It’s The World and Everything in It for this 4th day of May, 2026. We’re so glad you’ve joined us today. 

Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. 

It’s time for Legal Docket, and today, a major Supreme Court case that may decide whether cancer patients can continue to sue the maker of a pesticide they say caused the cancer.

John L. Durnell used the Monsanto product, Roundup, for years before he received a diagnosis of non-Hodgkin’s lymphoma.

He sued the company, which is now owned by Bayer.

REICHARD: Durnell argued the company should be held responsible for failing to place labels on Roundup, warning customers that Roundup could cause cancer. That is misbranding, he contended, and for that a jury in Missouri awarded him $1.5 million dollars.

Now some background: Roundup’s key ingredient is glyphosate. It’s sprayed on millions of acres of farmland.

The U.S. Environmental Protection Agency says glyphosate is not likely carcinogenic. But the World Health Organization says it “probably” is. Many European countries have restricted or banned glyphosate, and more than 150 cities in the U.S. have also limited its use.

EICHER: Bayer has paid or has committed to pay around $18 billion dollars to settle about 100,000 lawsuits. Thousands of others are pending for people who opted out of the settlement or cases on appeal from individual trial verdicts.

But the legal question now is this: Who gets the final say on these safety warnings?

The relevant federal law is the Federal Insecticide, Fungicide, and Rodenticide Act, said easier, FIFRA. It gives the EPA authority for what goes on pesticide labels.

For the narrow purposes of this case, the argument is not over the merits of the cancer claim. It’s over a conflict between state and federal law. 

Monsanto says the EPA approved its product label, and by law companies cannot change it without permission. That’s called registration, and companies are bound by it because the EPA says adding a cancer warning would be false and misleading.

REICHARD: Missouri law requires a plaintiff to prove that a product was “unreasonably dangerous” because the manufacturer failed to provide an “adequate warning of the danger.” So courts and juries are saying that NOT adding a cancer warning is misbranding because they believe the cancer risk is real.

So when the jury in Durnell’s case agreed Roundup should’ve had a warning label about cancer, that created the conflict between state and federal law.

EICHER: Monsanto’s lawyer Paul Clement says the jury got it wrong; Federal law is supreme over state law. That’s called pre-emption.

CLEMENT: Respondent's label-based failure-to-warn claim is preempted twice over. First, it is preempted by the express terms of FIFRA's express preemption clause, which forecloses state labeling claims that are in addition to or different from those imposed under FIFRA. Here, a Missouri jury imposed a cancer warning requirement that the EPA does not require. That additional requirement is preempted.

[….much later…] Ignoring Congress's clear direction here would open the door for crippling liability and undermine the interest of farmers who depend on federally registered pesticides for their likelihood.

I welcome the court's questions. 

Representing the federal government in support of Monsanto’s position is lawyer Sarah Harris:

HARRIS: Missouri forces Petitioner to add cancer warnings or face tort liability. But federal law requires Petitioner to stick with the label EPA approved in registering a product unless EPA approves a change. EPA registers pesticides only if EPA approves their labels as adequate to protect health. Federal law then requires manufacturers to keep using that label.

Monsanto argues it’s in a catch-22 with conflicting laws. Modify the label, and risk the ire of EPA. Don’t modify the label, and risk the ire of state law and state juries.

Besides that, glyphosate is what makes modern farming so successful, they say. Farmers save billions of dollars and a stable food supply chain is another positive result.

Take that off the market? Monsanto says the result will be higher food prices, lower yields, and reliance on foreign suppliers.

REICHARD: But Durnell’s lawyer argues EPA approval does not mean a product is safe for all time. If new evidence emerges, then companies ought to be held accountable for harm their products cause.

Durnell’s lawyer, Ashley Keller:

KELLER: You unanimously held in Bates that a pesticide can be registered and nevertheless misbranded, even if it uses the label that EPA approved at registration. Yet Monsanto now asks you for the opposite holding, that Roundup cannot be misbranded as a matter of law because EPA found for the first time 50 years ago as a matter of fact, that it is safe, based on information Monsanto submitted.

Justice Ketanji Brown Jackson asked Monsanto’s lawyer about that:

JACKSON: …could we have a world in which a product that has been registered, the label is consistent with what the agency has said is appropriate at the time of registration, but let's say a new research study comes out at some point between when the EPA is statutorily required to look at it again, that casts doubt on the safety of this product?

I heard skepticism toward Monsanto from the bench elsewhere. Here’s Justice Neil Gorsuch, who leans strongly to the federalist side of things, that states should retain power unless Congress explicitly takes it away:

GORSUCH: So you're saying….a properly registered product can never be misbranded?

CLEMENT: I'd say --no, I --I wouldn't say that. What I would say is a registered product that is marketed as labeled and approved by the agency is -

GORSUCH: Right. Can never be misbranded?

CLEMENT: --is not misbranded.

GORSUCH: Can never be misbranded.

CLEMENT: Well, I -- I mean, right. But -- but, of course, the easiest way to –

GORSUCH: Okay. No, no, I just want to make sure I understood --

CLEMENT: Yeah, yeah. I mean, that is my position.

EICHER: Other justices were concerned about the practical effects if every individual jury gets to decide what goes on a label. 

Listen to this exchange between Durnell’s lawyer and Justice Brett Kavanaugh, who seemed more sympathetic to Monsanto:

KAVANAUGH: You think it’s uniformity when each state can require different things?

KELLER: I don’t think each state can require different things. The law has to be uniform. So if Missouri law was in addition to the…

KAVANAUGH: Well, if the label's illegal in one state and legal in another state, that's uniformity?

KELLER: I don't agree with that. The label is not illegal in one state and legal in a different state. A jury has found the facts to say -

KAVANAUGH: The label subjects you to liability in one state and does not subject you to liability in the other state. Is that uniformity?

KELLER: I don't think it's state by state. I think it's jury by jury.

Justice Kavanaugh pushed back hard too, against the idea that a company should be held liable for a label the EPA ordered it to use. 

This is an exchange with Monsanto’s lawyer:

KAVANAUGH: New science. You're saying the way you account for new science is on a process that changes the requirements going forward, not on a process that retroactively tells you that what you did yesterday as ordered by EPA is somehow illegal.

CLEMENT: Absolutely. And it's an agency process that takes into account all of the various factors, costs and benefits. And, of course, the agency has incredible resources at its command, including peer-reviewed panels, cancer review, and -- and the like.

Chief Justice John Roberts saw an upside to that, noting the lag between scientific discovery and government regulation:

ROBERTS: What if the agency, EPA, says we've got this new information and we're …reviewing it. You know, as soon as we get to a point where we feel comfortable recommending something, we will. 

In that situation, the state can't make a determination that, well, we have this new information so that it's perhaps the EPA's determination of the label shouldn't be given such determinative effect? ...they're responsive to the new information more quickly than the federal government is.

REICHARD: The Chief Justice perhaps signaling he is looking for middle ground, helping Monsanto avoid chaos in regulation and letting federal law set the floor—without freezing the company’s duty to warn when new evidence comes in.

However the court decides, this is bigger than just Roundup the pesticide.

It’s about who decides risk: federal agencies or local juries?

If Monsanto wins, it will shut down thousands of lawsuits from cancer patients because state-level “failure to warn” claims will be barred.

If Durnell wins, those cases stay alive, and Monsanto may have to pay out billions of dollars and settle for even more.

This fight isn’t just in the courts, either—Congress is weighing similar questions about liability right now.

EICHER: Well Mary, before we go, one more note on a decision we flagged last week: First Choice Women’s Resource Centers v Davenport. 

And let’s talk about your interview with attorney Erin Hawley. She's the one who argued that case back in December. The client winning 9-0, a decision saying that New Jersey’s attorney general overstepped by issuing a subpoena of private donor records from a pregnancy care center.

REICHARD: That's right. I mentioned to her that this felt so familiar because I recalled a case from five years ago called Americans for Prosperity Foundation v Bonta. That’s the one where California’s attorney general was rebuked for demanding donor lists from nonprofits, and the court smacked him down for that.

So why didn’t New Jersey’s attorney general learn that lesson already?

HAWLEY: So I think it’s a combination of a Supreme Court decision that didn't maybe say as much as it could have in Americans for Prosperity, and really aggressive and hostile blue state attorney generals who have gone after ideological opponents …

New Jersey’s AG had claimed the subpoena was just about preventing fraud. But Hawley says that did not clear the constitutional bar.

HAWLEY: …Under the Supreme Court's precedent….the government has to satisfy something called exacting scrutiny. So in other words, they have to show that there's a really important reason to get that sort of information. Here in the First Choice case, what the government was saying was that you can’t even get into federal court at all, which is really crazy.

Of particular note is how the subpoena arose in the first place. Had there been public complaint about the pregnancy center deceiving the public?

HAWLEY: Absolutely not. The government investigation wasn’t triggered by a single complaint. There was no allegation of wrongdoing. First Choice has done amazing, exemplary work in New Jersey since 1985.

Hawley said the implications of this decision will extend beyond this single nonprofit case—it’ll include political donations or freedom of association cases more broadly.

And writing for the court, Justice Gorsuch pointed to NAACP v Alabama, which was the landmark ruling that protected membership privacy during the civil-rights era.

He asked: would it have been enough if the state merely promised to keep those membership lists confidential?

 I think we all know the answer to that one! And that’s this week’s Legal Docket.

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