Each year, the United States Supreme Court agrees to hear approximately 100-150 cases out of the more than 7,000 it is petitioned to review.
In December 2021, the high court asked the Biden Administration to weigh in on whether one of the cases it should review is the Hardeman v. Monsanto decision. In that trial, a jury found that Monsanto’s Roundup weed killer was responsible for California resident and regular Roundup user, Ed Hardeman’s cancer and awarded him $80 million in damages.
The Hardeman decision was one of three Roundup trials that Bayer AG has lost. Collectively, the three decisions awarded more than $100 million to the plaintiffs. Bayer, which acquired Monsanto in 2018 right before the first Roundup trial began, has also lost all three appeals.
Bayer has already settled more than 98,000 out of 125,000 Roundup cancer claims for $11 billion and has allocated $4.5 billion for Roundup litigation in case the nation’s high court refuses to hear the Hardeman verdict, which was upheld in May 2021 by the 9th U.S. Circuit Court of Appeals. (Hardeman’s award was reduced to $25 million.)
The fact that the U.S. Supreme Court has asked the Biden administration to give its opinion on whether the Hardeman case is worthy of review gives Bayer a sliver of confidence that costly Roundup litigation may finally come to an end.
Should the high court take up the case, the conservative, pro-business leaning bench may rule that because federal law preempts state law, no cancer warning label on glyphosate-based Roundup products are necessary. Glyphosate is the chemical compound that was deemed in 2015 as “probably carcinogenic” by the The International Agency for Research on Cancer (IARC), an arm of the World Health Organization (WHO).
But because the U.S. Environmental Protection Agency (EPA) has always claimed that Roundup poses no risks to human health as long as it is applied in accordance with the label’s instructions, California’s failure-to-warn law is preempted by federal law. And since federal law requires no failure-to-warn label on glyphosate, states can’t require it.
In fact, a U.S. appeals court banned California from slapping a warning label on Roundup products in 2020.
If the Supreme Court reviews the Hardeman case, Bayer is pinning its hopes that the majority of the justices will rule in its favor, based on the rules already set in place under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which says that U.S. states may not require labeling rules “in addition to or different from” those under federal law.
In the next few months, U.S. Solicitor General Elizabeth Prelogar, the top representative of the federal government in matters before the Supreme Court, is expected to issue a ruling on whether the Hardeman case is worthy of the Supreme’s review.
Meanwhile, because Preologar is mulling the decision on whether the Supreme Court should review the Hardeman case, Bayer announced it was temporarily suspending reaching any further Roundup settlements.