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The US Supreme Court has agreed to hear Bayer’s appeal in a closely watched case that could limit thousands of lawsuits alleging its Roundup weedkiller causes cancer, offering the prospect of relief to the German group after years of costly litigation.
The justices will review the Durnell case, which centres on whether state-level “failure-to-warn” claims are pre-empted by federal pesticide regulations. A ruling on the merits is expected by June, at the end of the court’s current term. The court has yet to schedule oral arguments.
Bayer, which inherited the litigation when it bought Monsanto for $66bn in 2018, said a favourable outcome would help “significantly contain” the Roundup lawsuits. It has set aside $6bn for litigation after already having paid more than $10bn in verdicts and settlements. It still faces about 65,000 active claims, largely linked to non-Hodgkin lymphoma.
At issue is whether juries can penalise manufacturers under state law for failing to warn about cancer risks when the US Environmental Protection Agency has repeatedly approved Roundup’s label without such warnings. Glyphosate, the herbicide’s active ingredient, is deemed safe by US regulators and most international authorities.
Bayer chief executive Bill Anderson has warned that the company could be forced to stop producing and selling glyphosate altogether if the legal uncertainty persists.
While Bayer insists the herbicide is safe and remains widely used by US farmers, Anderson has said the group cannot justify continuing to supply the product if it faces unlimited liability under state law.
The Supreme Court’s decision to hear the appeal follows a recommendation in Bayer’s favour from US solicitor-general John Sauer, who urged the justices to resolve a split among lower courts. While the Third Circuit has ruled that federal law pre-empts state failure-to-warn claims, other federal appeals courts and Missouri state judges have reached opposing conclusions.
In a brief filed in December, Sauer warned that allowing juries to override EPA labelling decisions would undermine federal authority and, as indicated in a separate case, expose companies to “50 different labelling regimes”.
“This case raises an important question about the scope of [the] pre-emption provision” of the Federal Insecticide, Fungicide and Rodenticide Act, a US federal law that regulates pesticides, Sauer wrote in the brief.
The appeal stems from a 2023 Missouri jury verdict awarding $1.25mn to cancer patient John Durnell on a single failure-to-warn claim, while rejecting punitive damages and other allegations. Bayer appealed after Missouri’s top court declined to review the case earlier this year.
Durnell argued that it was unlikely that Congress sought to grant companies “virtual immunity” from certain types of tort claims, according to a Supreme Court filing.
“Rather than test formulated Roundup for long-term cancer risks or provide warnings, Monsanto instead has waged a decades-long campaign to mislead the scientific community and the public about the weedkiller’s cancer risks,” Durnell added.
Bayer has said there is “clear science behind Roundup’s safety and benefits”.
Investors hope a decisive ruling could curb future claims and lift a long-standing cloud over Bayer’s valuation. Its share price has doubled over the past year, though its market capitalisation is still only about half of its $102bn peak in 2017.
Alongside its court strategy, Bayer has stepped up lobbying efforts with federal and state governments to protect itself from future litigation risks.