The U.S. Supreme Court gave Bayer AG a mixed reception on its bid to stop tens of thousands of lawsuits claiming its Roundup herbicide should have been labeled as a cancer risk.
Hearing arguments in Washington Monday, the justices weighed a $1.25 million jury verdict won by a Missouri man who blamed Roundup for his non-Hodgkin lymphoma. The company contends that since U.S. regulators didn’t require a cancer warning, federal law bars the Missouri suit and others like it.
The company drew supportive comments from Justice Brett Kavanaugh, who questioned whether lawsuits alleging a failure to warn could be squared with a provision in federal law requiring “uniformity” in herbicide labels. But Chief Justice John Roberts suggested that states considering new evidence that a product is risky should be allowed to “call this danger to the attention of the people.”
Bayer is looking to the Supreme Court to help put an end to litigation that has cost the company more than $10 billion and cast a pall over its stock price. A ruling favoring Bayer could also help the medical-device, cosmetic and food industries, which are governed by laws similar to the one at the center of the Bayer case. The court will rule by early July.
Bayer contends that federal law supersedes, or “preempts,” traditional state-law claims for failure to warn. The case centers on the Federal Insecticide, Fungicide, and Rodenticide Act, which sets out rules for pesticides including the requirement of an adequate label. FIFRA, as the law is known, also says that states can’t impose additional mandates.
Bayer says the latter provision means that once the Environmental Protection Agency approved Roundup’s mandatory label without requiring a cancer warning, the company can’t be sued for not having one. The company, which has the Trump administration’s backing in the case, has steadfastly maintained Roundup is safe and doesn’t cause cancer.
Cutting acrossLawyers for the plaintiff, John Durnell, say EPA’s determinations don’t preclude state courts from making their own judgments about the need for a warning.
The questioning Monday cut across the usual ideological lines. The Republican-appointed Roberts questioned the notion that states worried about cancer risks should have to wait for the EPA to decide whether to require a label change.“If it turns out that they were right, it might have been good if they had an opportunity to do something to call this danger to the attention of the people while the federal government was going through its process,” Roberts said....
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