The Supreme Court held 7-2 in Monsanto v. Durnell this summer that the Federal Insecticide, Fungicide, and Rodenticide Act bars failure-to-warn suits built on the absence of a pesticide label warning that the U.S. Environmental Protection Agency does not require. For growers who depend on glyphosate — the nation's most widely used agricultural herbicide — the decision ends a litigation wave that topped 100,000 Roundup suits and threatened billions in annual farm productivity.

Justice Brett Kavanaugh authored the opinion. It holds that FIFRA's "Uniformity" provision expressly preempts states from using their tort law systems to second-guess EPA's determinations on what health and safety warnings should or should not appear on a pesticide label.

That matters because EPA — the agency Congress vested with regulating pesticides and their labeling under FIFRA — has repeatedly determined, consistent with what the authors of the underlying opinion piece call the overwhelming scientific evidence, that a cancer warning on Roundup labels is not scientifically warranted. The agency has also concluded such a warning would be false, misleading and a violation of federal law.

Until Durnell, plaintiffs' personal-injury contingency-fee lawyers pursued decades of failure-to-warn claims against Monsanto, now part of Bayer. Through extensive television and other advertising about Roundup's supposed cancer risk, they recruited potential claimants and, in the view of industry advocates, attempted to bias juror pools nationwide. They argued with considerable success that Monsanto should pay billions because the EPA-approved labels lacked the very warning EPA had rejected.

The ruling's reach extends well beyond one herbicide. It bars personal injury suits involving any FIFRA-registered pesticide where the plaintiff claims the label should have carried a health or safety warning EPA did not require. Jay Vroom — who advises at the lobby firm DCLRS, Inc. and at OFW Law after serving as CEO of CropLife America from 1988 to 2018 — and Larry Ebner, executive vice president and general counsel of the Atlantic Legal Foundation, argue the decision effectively terminates the Roundup failure-to-warn litigation.

The two note that the litigation cloud over a core weed-control technology has largely lifted. The billions of dollars a year of preserved farm productivity are real, they write, tying the outcome directly to input availability and growers' weed-management margins for corn, soybeans and other glyphosate-tolerant cropping systems.

Environmental groups disappointed by Durnell are already seeking other avenues to attack glyphosate and FIFRA preemption, so the policy fight has not closed — it has shifted venues.

A playbook for the rest of agriculture

Vroom and Ebner draw a broader lesson: agriculture should apply the same professional attention, resources and advocacy to the judicial branch that it already devotes to the legislative and executive branches. They call Durnell a reminder that courts offer both protective defense and effective offense.

Not every ag sector enjoys the policy assets pesticides have — well-developed science supporting government licensing, express preemption provisions in FIFRA, and decades of case law. Vroom and Ebner have been associated with many pesticide preemption cases over recent decades, some successful and some less so, and they acknowledge the costs, process and timing of litigation can seem mind-bending. Still, they argue more of agriculture could benefit from a comprehensive three-branch approach to issue management.

The cost-effective entry point, they write, is the friend-of-the-court brief. Amicus briefs filed in carefully selected cases can give courts agriculture's perspective on real-world impacts — such as the jury verdicts Durnell shot down. Numerous amicus briefs were filed in Monsanto Co. v. Durnell, and the authors say those filings contributed to the outcome.

It remains rare for a policy-clarifying case of this kind to reach the Supreme Court. The pesticide industry stayed persistent and organized alongside key allies, refining issues and building momentum case by case. With environmental groups hunting new legal theories against glyphosate, ag groups weighing their next advocacy budgets will likely find the judicial branch demanding a larger line item.