A recent United States Supreme Court decision (decided on June 25, 2026) that highlights this point is Monsanto Co. v. Durnell, No. 24-1068 (2026). This article discusses the Monsanto case, which has been commonly referred to, and will be described here, as the “Bayer decision” (as the German chemical company, Bayer AG, owns Monsanto).

The Bayer decision concerns “Roundup”, a glyphosate-based pesticide manufactured by Monsanto. John Durnell brought a “failure-to-warn” tort lawsuit against Monsanto in state court in Missouri based on Monsanto not including a cancer warning on “Roundup’s” label. Durnell alleged that he developed non-Hodgkin’s lymphoma because of Monsanto failing to warn him of the cancer risks from “Roundup”. A Missouri jury awarded Durnell more than $1 million from his “failure-to-warn” lawsuit. In Missouri trial court, Monsanto moved for judgment notwithstanding the jury’s verdict on the grounds that Federal law did not require a cancer warning on the “Roundup” label and Federal law preempted any state law “failure-to-warn” claim. However, the Missouri trial court rejected the preemption argument of Monsanto, and the Missouri Court of Appeals affirmed the Missouri trial court. As the Federal Courts of Appeal and state courts have disagreed over whether Federal law preempts state liability based on “Roundup’s” lack of a cancer warning, the United States Supreme Court granted certiorari for the Bayer decision.

In a 7-2 decision written by Justice Brett Kavanaugh (Justice Kavanaugh was joined in the Bayer decision by Chief Justice John Roberts, Justice Samuel Alito, Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Clarence Thomas (Justice Thomas wrote a concurring opinion), with Justice Ketanji Brown Jackson writing a dissenting opinion in which Justice Neil Gorsuch joined), the United States Supreme Court reversed and remanded the Missouri Court of Appeals decision, holding that Federal law did preempt Durnell’s state law claim.

Justice Kavanaugh began his opinion in the Bayer decision by summarizing applicable Federal law. He stated as follows:

“In 1947, Congress passed and President Truman signed the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA]. . . . In 1972, Congress passed and President Nixon signed the Federal Environmental Pesticide Control Act. . . . That Act ‘transformed’ FIFRA ‘into a comprehensive regulatory statute’ and placed the newly created Environmental Protection Agency in charge of pesticide registration and labeling. . . . In doing so, Congress ‘significantly strengthened FIFRA’s registration and labeling standards’ and granted ‘increased enforcement authority’ to EPA. . . . Under that revamped regulatory regime, which still governs today, pesticides must be registered with EPA. . . . To register a pesticide, EPA must conclude that the pesticide ‘will not generally cause unreasonable adverse effects’ on human health and the environment, and that its labeling ‘compl[ies] with the requirements’ of FIFRA. . . . As to the label, FIFRA requires that a pesticide not be ‘misbranded.’ . . . A pesticide is misbranded if its label contains ‘any statement’ that is ‘false or misleading’ or if the label does not contain ‘a warning or caution statement which may be necessary and . . . adequate to protect health and the environment.’ . . . [B]efore registering a pesticide, EPA must evaluate a pesticide and its proposed label – and must determine that the proposed label includes all warnings necessary and adequate to protect human health and the environment, and is not false or misleading. EPA’s registration of the pesticide and approval of the pesticide’s label embodies the agency’s considered judgment that a pesticide is not misbranded – that is, that the label is not false or misleading and does not omit a necessary warning. . . . Importantly, after EPA has registered the pesticide and approved the label, the manufacturer is required to use that label. . . . If a manufacturer does not use the EPA-approved label, it may be subject to civil and criminal penalties. . . . Finally, and crucially for this case, FIFRA includes a preemption clause that further underscores EPA’s comprehensive and exclusive authority in registering pesticides and approving labels. In a provision entitled ‘Uniformity’ – a title that was added in a public law enacted by Congress in 1988, not by the codifiers – FIFRA prohibits States from imposing ‘any requirements for labeling or packaging in addition to or different from those required under’ FIFRA.”

After this summary of applicable Federal law, Justice Kavanaugh’s opinion in the Bayer decision focused on the following critical facts:

“In 1974, EPA first registered glyphosate-based pesticides and approved Roundup’s label without a cancer warning. In 1991 and for the more than three decades since, EPA has repeatedly re-evaluated glyphosate and has repeatedly concluded that glyphosate is not likely to cause cancer. . . . In 2017 and 2019, after the International Agency for Research on Cancer classified glyphosate as a probable carcinogen, EPA re-examined the issue but still adhered to its longstanding position on glyphosate. . . . In 2020, in an interim registration review decision, EPA reiterated that same position. . . . All told, in accordance with EPA’s view that glyphosate is not likely to cause cancer in humans, EPA has not required glyphosate-based pesticides like Roundup to include a cancer warning on their labels.”

Based on the above-described applicable Federal law and critical facts, Justice Kavanaugh reached the following conclusion in his opinion in the Bayer decision:

“Therefore, as a matter of federal law, Monsanto legally must use a label without a cancer warning unless and until EPA approves or requires a change. . . . FIFRA’s preemption clause is entitled ‘Uniformity’ and provides that a ‘State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.’ . . . FIFRA therefore preempts a state-law labeling requirement that differs from the federal labeling requirements imposed under FIFRA. ‘Uniformity’ in labeling – the textually stated objective of FIFRA’s preemption clause – would otherwise be impossible to achieve. . . . To start, as this Court’s precedents make clear and as the parties agree, state tort duties constitute state labeling requirements. . . . Failure-to-warn claims, like Durnell’s claim here, ‘are premised on common-law rules that qualify’ as labeling requirements because those ‘rules set a standard for a product’s labeling.’ . . . That makes good sense. After all, the heart of Durnell’s failure-to-warn claim under Missouri tort law is that Monsanto should have included a cancer warning on its Roundup labels. The question, then, is whether the Missouri failure-to-warn claim – which would require a cancer warning on the Roundup label – would impose a labeling requirement that is ‘in addition to or different from’ federal labeling requirements imposed ‘under’ FIFRA. The answer is yes. . . . In sum, federal law requires Monsanto to sell Roundup with the label that EPA approved at the initial registration and that EPA has subsequently re-approved on multiple occasions – that is, the label without a cancer warning. Durnell’s state tort claim, by contrast, would require Monsanto to add a cancer warning to its labels. That Missouri-law requirement is ‘in addition to’ and ‘different from’ Monsanto’s federal-law labeling obligations. . . . In short, under federal law, Monsanto was required (i) to obtain EPA’s approval for its Roundup label at registration; and (ii) to use the EPA approved Roundup label unless, in the future, EPA approved or required changes to the label. Those are the relevant federal labeling requirements ‘under’ FIFRA. Durnell’s failure-to-warn claim, meanwhile, would require Monsanto to place a cancer warning on Roundup’s label. That state labeling requirement is ‘in addition to or different from’ EPA’s labeling determinations that do not mandate a cancer warning. Durnell’s failure-to-warn claim is expressly preempted. . . . [A]s a matter of law, state tort law may not impose labeling requirements ‘in addition to’ or ‘different from’ federal requirements imposed under FIFRA. . . . With respect to pesticide labels, FIFRA demands ‘[u]niformity’ and expressly preempts state labeling requirements that are ‘in addition to’ or ‘different from’ federal labeling requirements. . . . Durnell’s state-law failure-to-warn claim would require a cancer warning on Roundup’s label – a requirement ‘in addition to’ and ‘different from’ the label required by EPA under FIFRA. FIFRA therefore expressly preempts Durnell’s claim. We reverse the judgment of the Missouri Court of Appeals”.

Viewed narrowly, the Bayer decision relates to the issue of pesticide labeling liability under FIFRA. Viewed more broadly, the Bayer decision supports three important points.

First, Federal law can override state law. If a business is dissatisfied with a particular state law obligation, it should see if there is applicable Federal law that is more favorable and can preempt the state law obligation.

Second, Federal law can offer a unitary, consistent law. If a business is bothered by the multiple costs and inefficiencies from complying with different state law obligations in different states, it should see if there is applicable Federal law that can be in effect throughout the United States and can preempt any different state law obligations.

Third, and as the primary focus of this article, litigation potentially can offer businesses a more successful response to liabilities than any settlement. It has been estimated that roughly 200,000 “Roundup” cases were filed against Monsanto based on the issue of glyphosate pesticide liability. In response, earlier this year and before the United States Supreme Court issued the Bayer decision, Bayer AG proposed a $7.25 billion nationwide class-action settlement to resolve claims relating to the issue of glyphosate pesticide liability. While the Bayer decision does not completely resolve all claims relating to the issue of glyphosate pesticide liability (besides claims relating to “failure-to-warn” labeling that would be covered by the Bayer decision, other possible claims relating to negligence, misrepresentation, and “inherently dangerous and defective” design could still be pursued), it significantly reduced the scope of these claims. By litigating, Bayer AG obtained a more successful result than if it had simply relied on its $7.25 billion settlement. There was no guarantee that a successful result would be achieved, as there was no guarantee that the United States Supreme Court would rule as it did, but this risk proved to be a prudent business decision by Bayer AG. Every business in every liability situation should carefully evaluate the “litigation vs. settlement” decision and proceed accordingly.

As a final point, please keep in mind that the decision to litigate or settle a liability is not the only decision that a business can make. Before a liability has accrued, businesses also always should consider the implementation of asset protection strategies to invoke another possible technique to minimize the adverse impact of liabilities. With proper asset protection, a business can be in a better position from which to analyze any “litigation vs. settlement” decision.

If you have any questions concerning the Bayer decision, or the general subject of how to best minimize the adverse impact of liabilities (whether through asset protection strategies, settlement, and/or litigation), please discuss these issues with your advisers.

Note – “Birthright Citizenship”

In another United States Supreme Court case decided in June, 2026 (on June 30, 2026), in Trump v. Barbara, No. 25-365, the United States Supreme Court ruled that children born in the United States, even if their parents are unlawfully or temporarily present in the United States, are “subject to the jurisdiction” of the United States and thereby are citizens of the United States at birth. This ruling, a 6-3 decision written by Chief Justice John Roberts (Chief Justice Roberts was joined in the decision by Justice Elena Kagan, Justice Amy Coney Barrett, Justice Ketanji Brown Jackson (who wrote a concurring opinion), Justice Sonia Sotomayor (who joined in the Introduction and Part I of Justice Jackson’s opinion), and Justice Brett Kavanaugh (who filed an opinion both concurring in the ruling and dissenting in part), with Justice Samuel Alito, Justice Neil Gorsuch, and Justice Clarence Thomas (Justice Gorsuch also joined in Justice Thomas’ opinion) each writing a dissenting opinion), upheld the concept of “birthright citizenship” and overturned an Executive Order by President Donald Trump to end “birthright citizenship”.

If you have any questions concerning the Trump v. Barbara case, or the concept of “birthright citizenship”, please discuss these issues with your advisers.

If you wish to discuss any of the above, find Pen Pal Gary’s contact info here.

Disclaimer: please note that nothing in this article is intended to be, or should be relied on as, legal advice of any kind. Neither LHBR Consulting, LLC nor Gary Stern provides legal services of any kind.