Amicus Curiae Brief — Monsanto Company, Petitioner v. John L. Durnell

Supreme Court briefMar 31, 2026

Ask Donna

What actually matters in this document.

Text

No. 24-1068

IN THE

Supreme Court of the United States

__________

MONSANTO COMPANY,

Petitioner,

v.

JOHN L. DURNELL,

Respondent.

__________

On Writ of Certiorari

to the Missouri Court of Appeals

__________

BRIEF OF ROUNDUP AND PARAQUAT

MDL LEADERSHIP AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

__________

ROBIN L. GREENWALD

WEITZ & LUXENBERG P.C.

700 Broadway

New York, NY 10003

(212) 558-5500

KHALDOUN A. BAGHDADI

WALKUP, MELODIA, KELLY

& SCHOENBERGER

650 California Street

26th Floor

San Francisco, CA 94108

(415) 212-4350

March 31, 2026

DAVID C. FREDERICK

Counsel of Record

DEREK C. REINBOLD

KYLE B. GRIGEL

ALYSSA J. PICARD

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

QUESTION PRESENTED

The Question Presented, as modified by the Court,

is:

Whether the Federal Insecticide, Fungicide, and

Rodenticide Act preempts a label-based failure-towarn claim where EPA has not required the warning.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

GLOSSARY ..................................................................x

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 2

STATEMENT .............................................................. 5

A. Statutory And Regulatory Background .......... 5

B. Factual Background ......................................... 8

ARGUMENT ............................................................. 15

I. FIFRA DOES NOT EXPRESSLY

PREEMPT LABEL-BASED FAILURETO-WARN CLAIMS ....................................... 15

A. Failure-To-Warn Claims Like Respondent’s Are Consistent With FIFRA,

Which Reserves Significant Authority

To States .................................................... 15

B. Monsanto’s Express-Preemption Arguments Lack Merit ...................................... 20

II. FIFRA DOES NOT IMPLICITLY

PREEMPT LABEL-BASED FAILURETO-WARN CLAIMS ....................................... 27

III. MONSANTO’S POSITION WOULD

HAVE SUBSTANTIAL NEGATIVE

EFFECTS ....................................................... 31

CONCLUSION.......................................................... 32

iii

TABLE OF AUTHORITIES

CASES

Page

Bates v. Dow AgroSciences LLC, 544 U.S. 431

(2005) ................................................ 1-8, 15-20, 22,

24-26, 28-29, 31-32

Carson v. Monsanto Co.:

72 F.4th 1261 (11th Cir. 2023) ............................ 15

92 F.4th 980 (11th Cir. 2024) .........................19, 31

Cipollone v. Liggett Grp., Inc., 505 U.S. 504

(1992) ..................................................................... 6

Ferebee v. Chevron Chem. Co., 736 F.2d 1529

(D.C. Cir. 1984) ...................................................... 7

Hardeman v. Monsanto Co., 997 F.3d 941

(9th Cir. 2021).......................... 19, 22, 24-25, 29-31

Kiakombua v. Wolf, 498 F. Supp. 3d 1 (D.D.C.

2020)..................................................................... 21

League of United Latin Am. Citizens v. Regan,

996 F.3d 673 (9th Cir. 2021) ............................... 23

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .......... 15,

20, 24-25

Merck Sharp & Dohme Corp. v. Albrecht,

587 U.S. 299 (2019) ........................................27, 30

Moore v. Ford Motor Co., 332 S.W.3d 749

(Mo. 2011) ............................................................ 20

NRDC v. EPA, 38 F.4th 34 (9th Cir. 2022) .....3, 12, 20

PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ......3, 25,

28-29

iv

Red River Valley Sugarbeet Growers Ass’n v.

Regan, 85 F.4th 881 (8th Cir. 2023) ................... 23

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008)... 2, 24-25

Sprietsma v. Mercury Marine, 537 U.S. 51

(2002) ................................................................... 31

United States v. ICC, 337 U.S. 426 (1949) ............... 21

Wisconsin Pub. Intervenor v. Mortier, 501 U.S.

597 (1991) .............................................................. 7

WorldCom, Inc. v. FCC, 246 F.3d 690 (D.C. Cir.

2001)..................................................................... 21

Wyeth v. Levine, 555 U.S. 555 (2009) ........ 4, 27-28, 30

STATUTES AND REGULATIONS

Federal Environmental Pesticide Control Act of

1972, Pub. L. No. 92-516, § 2, 86 Stat. 973,

984 .......................................................................... 5

Federal Food, Drug, and Cosmetic Act,

21 U.S.C. § 301 et seq. ...................................28, 30

21 U.S.C. § 360k(a)(2).......................................... 24

Federal Insecticide, Fungicide, and Rodenticide

Act, 7 U.S.C. §§ 136-136y ....................... 1-7, 15-22,

24-29, 31-32

§ 136(q) ................................................................... 7

§ 136(q)(1)(A) ......................................................... 6

§ 136(q)(1)(F).................................................... 6, 24

§ 136(q)(1)(G) .............................. 2, 6, 19-20, 22, 24

§ 136a(a) ................................................................. 5

§ 136a(c) ................................................................. 5

v

§ 136a(c)(1)(C) .................................................. 6, 29

§ 136a(c)(2) ........................................................... 22

§ 136a(c)(5) ............................................................. 5

§ 136a(c)(5)(B)-(D) ........................................... 6, 22

§ 136a(f )(1) ........................................................... 29

§ 136a(f )(2) .............................................. 3, 7, 21-24

§ 136d(a)(2) ............................................................ 6

§ 136d(b) ................................................................. 7

§ 136j ...................................................................... 7

§ 136j(a)(1)(E) ..................................................... 6-7

§ 136j(a)(2)(C) ........................................................ 6

§ 136j(a)(2)(M)........................................................ 6

§ 136k ..................................................................... 7

§ 136l ...................................................................... 7

§ 136v ..................................................................... 7

§ 136v(a) ................................. 2, 8, 15, 17-19, 24-25

§ 136v(b) ............................................ 2, 8, 16-19, 24

§ 136v(c) ............................................................... 15

§ 136v(c)(1) ........................................................... 15

§ 136w-1 ................................................2, 15, 17, 25

Medical Device Amendments of 1976, Pub. L.

No. 94-295, 90 Stat. 539 .................................. 2, 24

15 U.S.C. § 1333 .......................................................... 6

15 U.S.C. § 4402(a)(1) ................................................. 6

Cal. Food & Agric. Code §§ 14001-14015 ................. 13

21 C.F.R. § 801.430(c) ................................................. 6

vi

40 C.F.R.:

Pt. 152:

§ 152.46(a) ...................................................... 29

§ 152.50(e)....................................................... 29

Pt. 156:

§ 156.64 ........................................................... 26

Pt. 158:

§ 158.500(d) ...................................................... 5

Pt. 159 .................................................................... 6

Cal. Code Regs. tit. 3:

§ 6420(a) ............................................................... 13

§ 6466 ................................................................... 13

§ 6470 ................................................................... 13

ADMINISTRATIVE MATERIALS

Shelley DuTeaux et al., Cal. Dep’t of Pesticide

Regulation, Preliminary Report of the Potential Human Health Outcomes Resulting

from Paraquat Exposure (Dec. 2024),

https://www.cdpr.ca.gov/wp-content/uploads/

2024/12/paraquat_preliminary_human_

health_report.pdf ............................................ 12-13

Env’t Prot. Agency:

EPA Withdraws Glyphosate Interim Decision

(Sept. 23, 2022), https://perma.cc/EU77LMGN .................................................................. 21

vii

Final Rule, Optional Procedures for Classification of Pesticide Uses by Regulation, 43

Fed. Reg. 5782 (Feb. 9, 1978) ................................ 9

Off. of Pesticide Programs, Pesticide Registration Notice 98-10 (Oct. 22, 1998), https://

perma.cc/5JC7-ESFR .......................................... 29

Off. of Pesticide Programs, Revised Glyphosate Issue Paper: Evaluation of Carcinogenic Potential (Dec. 12, 2017), https://

perma.cc/2WJM-MT7R ................................... 11-12

Paraquat Dichloride: Interim Registration

Review Decision (July 2021), https://perma.

cc/4B7K-5G5E ...................................................... 13

Paraquat Dichloride: Systematic Review

(June 26, 2019), https://perma.cc/N75Z8VZ7 ..................................................................... 12

Reregistration Eligibility Decision (RED)

Glyphosate (Sept. 1993), https://perma.cc/

528H-F4FN .......................................................... 30

Reregistration Eligibility Decision (RED)

Paraquat Dichloride (Aug. 1997), https://

perma.cc/Z7DP-KLHA ......................................... 12

Fed. Jud. Ctr., Reference Manual on Scientific

Evidence (3d ed. 2011), https://perma.cc/V9UT98DR .................................................................... 13

OTHER MATERIALS

Am. Parkinson Disease Ass’n, Paraquat is

banned in 70+ countries, but still legal in the

US (Feb. 24, 2026) ............................................... 13

viii

Bayer, Missouri court grants preliminary

approval of Roundup™ class settlement to

resolve current and future claims (Mar. 4,

2026)..................................................................... 14

Brief Amicus Curiae for the United States in

Support of Plaintiffs-Appellants, Etcheverry

v. Tri-Ag Serv., Inc., 993 P.2d 366 (Cal. 2000)

(No. S072524, filed Mar. 1999) ............................ 19

Brief for the United States as Amicus Curiae,

Monsanto Co. v. Hardeman, No. 21-241

(U.S. May 10, 2022) .................................. 23-24, 32

Class Action Settlement Agreement, In re

Roundup Prods. Liab. Litig., No. 3:16-md2741-VC, ECF #12509-2 (N.D. Cal. Feb. 3,

2021)..................................................................... 26

Class Action Settlement Agreement, King v.

Monsanto Co., No. 2622-CC00325 (Mo. Cir.

Ct. Feb. 17, 2026)................................................. 14

Nathan Donley, The USA lags behind other

agricultural nations in banning harmful

pesticides, 18 Envtl. Health #44 (2019) .............. 23

Sharon Lerner, The Paraquat Poisoning Problem (Mar. 24, 2021), https://theintercept.

com/2021/03/24/paraquat-poisoningsyngenta/ ................................................................ 9

PAN Germany, Paraquat and Suicide (2003),

https://www.pan-germany.org/download/

fact_paraquat2.pdf ................................................ 9

Restatement (Third) of Torts: Products Liability

(1998) ................................................................... 25

ix

Caroline M. Tanner et al., Rotenone, Paraquat,

and Parkinson’s Disease, 119 Envtl. Health

Persp. 866 (June 2011) ........................................ 11

Martin van den Berg, Retraction Notice to

“Safety Evaluation and Risk Assessment of

the Herbicide Roundup and Its Active Ingredient, Glyphosate, for Humans” [31 Regul.

Toxicol. & Pharm. 117-65 (2000)], published

online December 2025, https://bit.ly/4aefz1P ...... 10

x

GLOSSARY

BIO.App.

Appendix to Brief in Opposition

for Respondent, Monsanto Co. v.

Durnell, No. 24-1068 (U.S. June 9,

2025)

Botham.Dep.

Deposition Transcript of Dr. Philip

Botham, Hoffmann v. Syngenta

Crop Prot., LLC, No. 17-L-517 (Ill.

Cir. Ct., 20th Jud. Cir., St. Clair

Cnty. Feb. 25-26 & June 17-19,

2020), available at https://www.

thenewlede.org/wp-content/uploads/2022/11/Dr.-Bothamdeposition-transcript-2020.pdf

Dixon.Dep.

Deposition Transcript of Syngenta,

by and through its Representative

Montague Dixon, Hoffmann v.

Syngenta Crop Prot., LLC, No. 17L-517 (Ill. Cir. Ct., 20th Jud. Cir.,

St. Clair Cnty. June 24, 2020),

available at https://www.thenewlede.org/wp-content/uploads/2023/

05/Monty-Dixon-deposition-2020.

pdf

EPA

Environmental Protection Agency

FDCA

Federal Food, Drug, and Cosmetic

Act, 21 U.S.C. § 301 et seq.

FIFRA

Federal Insecticide, Fungicide, and

Rodenticide Act, 7 U.S.C. §§ 136136y

IARC

International Agency for Research

on Cancer

xi

MDAs

Medical Device Amendments of

1976, Pub. L. No. 94-295, 90 Stat.

539

MDL

Multidistrict Litigation

Ouzts.Dep.

Deposition Transcript of Syngenta,

by and through its Representative

Clark Ouzts, Hoffmann v. Syngenta

Crop Prot., LLC, No. 17-L-517 (Ill.

Cir. Ct., 20th Jud. Cir., St. Clair

Cnty. June 22 & Sept. 28, 2020),

available at https://www.thenewlede.org/wp-content/uploads/2023/

05/Clark-Ouzts-deposition-2020.

pdf

Patterson.Dep.

Deposition Transcript of Timothy

Patterson, Hoffmann v. Syngenta

Crop Prot., LLC, No. 17-L-517 (Ill.

Cir. Ct., 20th Jud. Cir., St. Clair

Cnty. Jan. 22, 2021), available at

https://www.thenewlede.org/wpcontent/uploads/2023/05/Pattersondeposition-2021.pdf

Pet.App.

Appendix to Petition for Writ

of Certiorari, Monsanto Co. v.

Durnell, No. 24-1068 (U.S. Apr. 4,

2025)

POEA

polyethoxylated tallow amine

PPE

personal protective equipment

RA

Respondent’s Appendix, Durnell v.

Monsanto Co., ED112410 (Mo. Ct.

App. Nov. 7, 2024)

xii

Tr.

Transcript on Appeal in No.

ED112410 (Mo. Ct. App. June 13,

2024)

U.S. Hardeman

Br.

Brief for the United States as Amicus Curiae, Monsanto Co. v. Hardeman, No. 21-241 (U.S. May 10,

2022)

INTEREST OF AMICI CURIAE 1

Amici are the court-appointed leaders of MDLs

involving plaintiffs harmed by the pesticides Roundup

and paraquat. See In re Roundup Prods. Liab. Litig.,

MDL No. 2741 (N.D. Cal.); In re Paraquat Prods. Liab.

Litig., MDL No. 3004 (S.D. Ill.). Amici represent more

than 5,000 individuals who allege that glyphosatebased Roundup caused them to develop non-Hodgkin

lymphoma. And amici represent approximately 6,525

individuals who allege that they developed Parkinson’s

disease following exposure to paraquat, a restricteduse herbicide banned in many countries.

Amici have a substantial interest in this case

because Monsanto’s preemption theory—that FIFRA

bars failure-to-warn claims whenever EPA has not

required a warning—would directly affect their

clients’ cases. Accepting Monsanto’s position would

allow manufacturers to invoke EPA’s silence as a

defense, even when the manufacturer failed to disclose

material safety information to the agency. That concern is concrete here: Amici’s cases include evidence

that Monsanto and Syngenta suppressed studies and

withheld data from EPA, contributing to the absence

of warnings on the labels they invoke as preemptive.

Amici offer a practical perspective. They have

extensive experience with FIFRA’s registration process,

manufacturers’ interactions with EPA, and the role of

preemption defenses in mass tort litigation. That

experience informs amici’s view that FIFRA preserves

the “concurrent authority of the Federal and State

Governments” and that state-law remedies “aid,

rather than hinder, the functioning of FIFRA.” Bates

v. Dow AgroSciences LLC, 544 U.S. 431, 450-51 (2005).

1 No counsel for a party authored this brief in whole or part.

No person or entity other than amici or counsel made a monetary

contribution to the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

The Court granted certiorari to decide whether the

Federal Insecticide, Fungicide, and Rodenticide Act

preempts a label-based failure-to-warn claim where

EPA has not required the warning. The answer is no.

I. FIFRA preserves a broad role for state regulation of pesticides—including the power to ban a federally registered pesticide. Against that backdrop, Monsanto’s claim that FIFRA strips States of the lesser

authority to require reasonable warnings lacks merit.

A. FIFRA “authorizes a relatively decentralized

scheme that preserves a broad role for state regulation.” Bates, 544 U.S. at 450. States may ban or

restrict the use of any EPA-approved pesticide. 7 U.S.C.

§ 136v(a).2 And they bear “primary enforcement

responsibility” for pesticide use violations. § 136w-1.

The one limit on that authority is a “narrow” preemption provision, Bates, 544 U.S. at 452, which bars only

state labeling requirements that are “in addition to or

different from” FIFRA’s own requirements, § 136v(b).

Because FIFRA does not give EPA final say over

pesticide use, a state-law failure-to-warn claim based

on inadequate instructions for a pesticide’s safe use

does not add to or differ from any preemptive federal

requirement. Nor does a state-law claim that parallels FIFRA’s misbranding provisions, which require

warnings “adequate to protect health,” § 136(q)(1)(G).

B. A fair accounting of FIFRA’s registration

scheme rebuts Monsanto’s and the United States’

arguments. Unlike the Medical Device Amendments

at issue in Riegel v. Medtronic, Inc., 552 U.S. 312

(2008), FIFRA does not treat registration as a comprehensive federal safety determination that displaces

2 Except where noted, U.S. Code citations are to Title 7.

3

state authority. Registration is only “prima facie

evidence” that a pesticide complies with the statute.

§ 136a(f )(2). It is not “a defense for the commission of

any offense” under FIFRA, including misbranding.

Id. The manufacturer—not EPA—drafts the label,

submits the supporting data, and bears a continuing

obligation to ensure the label is not misleading. See

Bates, 544 U.S. at 438. That allocation of responsibility is the opposite of when agency approval immunizes

a manufacturer from liability.

The need for state-law remedies is acute here

because EPA has not meaningfully evaluated the

risks underlying these cases. The agency never has

assessed whether Roundup as formulated—including

its surfactant and several carcinogenic contaminants—

causes cancer. Nor has the agency properly assessed

the cancer-causing potential of Roundup’s active

ingredient: When EPA determined that glyphosate

alone is “not likely to be carcinogenic,” the Ninth

Circuit vacated that conclusion as “the hallmark of

arbitrary action.” NRDC v. EPA, 38 F.4th 34, 49, 51

(9th Cir. 2022). Similarly, EPA has failed to evaluate

paraquat’s capacity to cause Parkinson’s disease.

Despite decades of emerging evidence, the agency

never has required neurotoxicity testing—but has

cited the absence of such testing as proof of safety.

Where EPA is silent on warnings imposed under state

law, preemption is inappropriate.

II. Monsanto’s implied-preemption arguments likewise do not withstand scrutiny. Unlike the genericdrug manufacturers in PLIVA, Inc. v. Mensing, 564

U.S. 604 (2011), pesticide registrants bear primary

responsibility for their own labels and can act independently to amend them. And there is no “clear evidence” that EPA would have rejected any adequate

4

warning. Wyeth v. Levine, 555 U.S. 555, 571 (2009).

Monsanto never proposed one—not a cancer warning,

an instruction that consumers wear personal protective equipment like masks or gloves, or even an

acknowledgment that authoritative scientific bodies

have concluded glyphosate is carcinogenic.

III. State-law tort actions serve FIFRA’s purposes

by exposing undisclosed dangers and giving manufacturers “added dynamic incentives to continue to keep

abreast of all possible injuries stemming from use of

their product.” Bates, 544 U.S. at 451. That function

is critical here, where the statutory scheme depends

heavily on manufacturer disclosure. The record shows

that manufacturers withheld safety data from EPA

for years—a fact that surfaced only through private

litigation, not agency oversight. Accepting Monsanto’s

preemption theory would invert that framework:

rewarding nondisclosure, converting manufacturercreated regulatory gaps into immunity, and leaving

injured individuals with no remedy for harms that

adequate warnings could have prevented.

5

STATEMENT

A. Statutory And Regulatory Background

1. In 1947, Congress enacted FIFRA to protect

against adulterated and ineffective pesticides. FIFRA

initially had no health or environmental protections.

Congress amended the statute in 1972, in the wake of

Rachel Carson’s Silent Spring and the controversy

over DDT, to require EPA to consider risks to health

and the environment when deciding whether to register a pesticide. See Federal Environmental Pesticide

Control Act of 1972, Pub. L. No. 92-516, § 2, 86 Stat.

973, 984. FIFRA today governs “the use, as well

as the sale and labeling, of pesticides.” Bates 544 U.S.

at 437. Congress has not amended FIFRA in any

material respect since this Court’s 2005 Bates decision.

FIFRA requires manufacturers to “register” their

pesticides with EPA. § 136a(a) (“Requirement of registration”). EPA registration confers a limited license

to market a pesticide. FIFRA provides that EPA

“shall” register a pesticide if it determines that the

label complies with the statute’s requirements, the

manufacturer’s claims about the product’s composition are warranted, the pesticide will perform its

intended function, and its use “will not generally

cause unreasonable adverse effects” on human health

or the environment. § 136a(c)(5).

The manufacturer bears the burden of making that

showing, although it is not a demanding one. The

manufacturer must submit data demonstrating that

the proposed pesticide satisfies FIFRA’s standards.

§ 136a(a), (c). As to carcinogenicity, EPA’s regulations

require only two rodent studies. See 40 C.F.R.

§ 158.500(d) (Table, Guideline No. 870.4200).

Based on those submissions, EPA then determines

whether the product meets FIFRA’s standards,

6

including whether it will avoid unreasonable harm

to human health and the environment and whether

its label is not “misbranded.” § 136a(c)(5)(B)-(D). A

pesticide is “misbranded” if its label contains a statement that is “false or misleading in any particular,”

§ 136(q)(1)(A), or omits adequate instructions for

use, necessary warnings, or cautionary statements,

§ 136(q)(1)(F), (G).

2. FIFRA leaves the drafting of the label to the

registrant. § 136a(c)(1)(C). This feature distinguishes

FIFRA from other laws, including “the cigarette labeling law at issue in Cipollone [v. Liggett Group, Inc.,

505 U.S. 504 (1992)], which prescribed certain immutable warning statements.” Bates, 544 U.S. at 451; see

also 15 U.S.C. §§ 1333, 4402(a)(1). EPA’s regulations

also do not dictate the language to be used for the bulk

of each label. Cf. 21 C.F.R. § 801.430(c) (specific toxicshock warnings).

Because EPA relies on manufacturer-submitted

data and labeling language, and does not conduct its

own tests on a pesticide’s health and environmental

effects, FIFRA imposes requirements on registrants:

First, a registrant may not knowingly falsify any

part of a registration application, and it may not make

false or misleading statements in its labeling.

§§ 136(q)(1)(A), 136j(a)(1)(E), 136j(a)(2)(C), (M).

Second, after registration issues, the registrant

must provide EPA with information about unreasonable adverse effects on health or the environment.

§ 136d(a)(2); 40 C.F.R. pt. 159.

Third, the registrant remains responsible for ensuring that its registration and labeling comply with

FIFRA. “Because it is unlawful under the statute to

sell a pesticide that is registered but nevertheless misbranded, manufacturers have a continuing obligation

7

to adhere to FIFRA’s labeling requirements.” Bates,

544 U.S. at 438; see §§ 136(q), 136j(a)(1)(E).

3. Registration does not insulate a manufacturer

from liability. FIFRA provides that “[i]n no event

shall registration of an article be construed as a

defense” to a violation of the Act. § 136a(f )(2). Rather,

registration is only “prima facie evidence” that the

pesticide and its labeling comply with the statute. Id.

If EPA concludes that a registration no longer

complies with FIFRA, it may initiate administrative

proceedings to cancel the registration, § 136d(b),

although such proceedings are time-consuming,

expensive, and thus rare, see infra p.23. EPA also may

seize, restrict, or prohibit the sale or use of pesticides

that violate FIFRA. §§ 136j, 136k; see also § 136l

(authorizing civil and criminal penalties).

None of FIFRA’s enforcement mechanisms compensates people injured by an unsafe or mislabeled pesticide. Nor does federal law provide any other damages

remedy for those injuries. Historically, then, statelaw damages actions have provided the only means of

compensating individuals harmed by FIFRA violations. See Bates, 544 U.S. at 451; Ferebee v. Chevron

Chem. Co., 736 F.2d 1529, 1540-41 (D.C. Cir. 1984).

4. FIFRA “authorizes a relatively decentralized

scheme that preserves a broad role for state regulation.” Bates, 544 U.S. at 450; see Wisconsin Pub.

Intervenor v. Mortier, 501 U.S. 597, 613 (1991) (“[T]he

statute leaves ample room for States and localities

to supplement federal efforts even absent the express

regulatory authorization of § 136v(a).”).

Indeed,

States may ban a federally registered pesticide, even

if EPA does not consider it misbranded. Bates, 544

U.S. at 446. That authority is reflected in § 136v:

8

§ 136v. Authority of States

(a) In general

A State may regulate the sale or use of any

federally registered pesticide or device in the

State, but only if and to the extent the regulation

does not permit any sale or use prohibited by

[FIFRA].

The one statutory limit on that traditional state

authority is a “narrow” preemption provision, Bates, 544

U.S. at 452—§ 136v(b):

(b) Uniformity

Such State shall not impose or continue in effect

any requirements for labeling or packaging in

addition to or different from those required under

[FIFRA].

B. Factual Background

1. Monsanto developed the weedkiller Roundup,

whose active ingredient is glyphosate. RA4 (¶ 12);

3 Tr. 1663:23-25. The company long has marketed

Roundup as safe for consumer use without personal

protective equipment; its consumer labeling does not

require a mask, gloves, or other PPE. RA4 (¶ 13),

RA45 (¶ 38); 4 Tr. 2509:9-21, 2515:11-2516:11. Farmers, who typically buy Roundup in concentrated form,

are warned to wear gloves and to wash their clothes

after spraying it. 3 Tr. 2344:10-2347:21.

Roundup contains not only glyphosate but also a

surfactant and “[s]everal” cancer-causing contaminants, including “Ethylene oxide and 1,4-Dioxane.”

3 Tr. 2007:22-2008:2. The surfactant in the United

States is polyethoxylated tallow amine, which helps

Roundup penetrate human skin. RA44 (¶ 33); 3 Tr.

1664:3-6, 2008:12-16. POEA makes Roundup more

genotoxic and is banned in Europe. RA44 (¶ 34).

9

Monsanto never has tested whether formulated

Roundup causes cancer. BIO.App.45a. In 2009,

Monsanto’s Dr. Farmer wrote “you cannot say that

Roundup does not cause cancer. We have not done

carcinogenicity studies with ‘Roundup.’ ”

JA109

(cleaned up).

Paraquat, a commercial pesticide in use since the

1960s, poses similarly life-threatening risks. Botham.

Dep. 96-97. Acutely toxic if ingested, paraquat is a

“major suicide agent,” particularly in “developing

countries.” PAN Germany, Paraquat and Suicide 2

(2003).

Paraquat is banned in more than 70 countries, including the European Union and China. Botham.Dep.

483-85, 1210-11. It remains in use in the United

States as a “restricted-use” pesticide. 43 Fed. Reg.

5782 (Feb. 9, 1978).

Paraquat’s acute toxicity is prominently disclosed

on its label. Patterson.Dep. 26-29. But the risks from

chronic exposure are not. Patterson.Dep. 30-32. Even

compliant applicators may absorb paraquat through

skin contact or inhalation, leading to accumulation in

the brain and Parkinson’s disease. Botham.Dep. 20406, 211, 216-17, 251-52. PPE does not eliminate this

risk: a 2007 study found 10 of 15 applicators tested

positive for paraquat ingestion despite using labelrequired PPE. Ouzts.Dep. 187-97. There have been

“tens of thousands of deaths from paraquat poisoning”—“possibly more than 100,000.” Sharon Lerner,

The Paraquat Poisoning Problem (Mar. 24, 2021).

2. Both pesticides’ manufacturers knew of these

risks yet suppressed the evidence.

Monsanto registered Roundup products in the mid1970s by submitting studies from Industrial Bio-Test

Laboratories—studies that FDA later discovered were

10

fraudulent. RA4 (¶ 12), RA39 (¶ 9); RA68; 2 Tr.

1020:8-1022:24. In 1985, EPA classified glyphosate as

a possible human carcinogen. RA40 (¶ 15).

Rather than pursue additional testing to resolve

those concerns, Monsanto sought to cover them up. In

the late 1990s, after four studies concluded glyphosate

was possibly genotoxic, RA41 (¶ 22), Monsanto hired

Dr. James Parry, who concluded glyphosate could be

genotoxic and suggested further tests. BIO.App.1a8a; 3 Tr. 1702:21-1703:4. Monsanto instead replaced

Parry with Dr. Gary Williams, who published an article in 2000 concluding Roundup posed no health risk.

RA45 (¶ 39). But Monsanto wrote the article, RA46

(¶ 40), then EPA relied on it when evaluating glyphosate’s carcinogenic potential, id. (¶ 42). In December

2025, the article was retracted because Monsanto

employees’ undisclosed involvement “raise[d] serious

ethical concerns regarding the independence and

accountability of the authors of this article and the

academic integrity of the carcinogenicity studies presented.”3

Syngenta, paraquat’s primary producer, likewise

long knew paraquat increases the risk of Parkinson’s.

Botham.Dep. 324, 329, 374, 662. Yet the company assured users that paraquat “does not reach the specific

location in the brain necessary to produce Parkinson’s

symptoms.” Botham.Dep. 1072-78. Syngenta directed

employees not to measure paraquat in animal brains

because any amount “(no matter how small) will

not be perceived externally in a positive light.”

3 Martin van den Berg, Retraction Notice to “Safety Evaluation

and Risk Assessment of the Herbicide Roundup and Its Active

Ingredient, Glyphosate, for Humans” [31 Regul. Toxicol. &

Pharm. 117-65 (2000)], published online December 2025,

https://bit.ly/4aefz1P.

11

Botham.Dep. 311-15. From 2008 on, all paraquat

research required legal-department approval. Botham.

Dep. 1104-06, 1191-93.

Despite these measures, Syngenta’s own scientists

identified neurological risks. Between 2003 and 2005,

scientist Louise Marks found statistically significant

neuron loss; Syngenta withheld those findings from

EPA until December 2019, after plaintiffs’ counsel uncovered them. Botham.Dep. 315-18, 332-34, 363-64,

395-98. A 2010 study found paraquat concentrations

in exposed squirrel monkeys’ brains did not decline

over time. Syngenta chose not to disclose that study.

Botham.Dep. 813-14, 826-27. A 2011 NIH-funded

study reported a 2.5-fold increase in Parkinson’s risk

among paraquat-exposed workers. See Caroline M.

Tanner et al., Rotenone, Paraquat, and Parkinson’s

Disease, 119 Envtl. Health Persp. 866 (June 2011).

Syngenta’s privately commissioned reanalysis found

a comparable increase, but it did not disclose those

results. Botham.Dep. 395-403.

3. EPA’s regulatory response to both products has

been marked by circular reasoning and reliance on

manufacturer-controlled evidence.

As to Roundup, EPA has made no findings about

whether the formulated product causes cancer. In

2017, the agency determined that it could not reach “a

conclusion regarding the association between glyphosate exposure and risk of [non-Hodgkin lymphoma].”

Off. of Pesticide Programs, EPA, Revised Glyphosate

Issue Paper: Evaluation of Carcinogenic Potential 68

(Dec. 12, 2017). The data were uncertain partly

because “farmers and other applicators apply formulations, not the active ingredient alone.” Id. at 137

(emphasis added). So EPA acknowledged the need

for more research “to determine whether formulation

12

components, such as surfactants, influence the toxicity of glyphosate formulations.” Id. at 144. Even so,

in January 2020, EPA determined that “glyphosate is

not likely to be carcinogenic to humans.” NRDC, 38

F.4th at 43. The Ninth Circuit vacated that conclusion as “the hallmark of arbitrary action.” Id. at 51.

The agency’s treatment of paraquat followed a similar pattern. Paraquat was first registered in 1964,

before EPA existed; EPA classified it as a restricteduse pesticide in 1978 but never required neurotoxicity

testing—then cited the absence of such testing as

proof of safety. Patterson.Dep. 31, 89-90; 43 Fed. Reg.

5782. Successive reevaluations reached the same

circular conclusion. See, e.g., EPA, Reregistration

Eligibility Decision (RED) Paraquat Dichloride 33

(Aug. 1997); Shelley DuTeaux et al., Cal. Dep’t of Pesticide Regulation, Preliminary Report of the Potential

Human Health Outcomes Resulting from Paraquat

Exposure 16-17 (Dec. 2024) (“DuTeaux, Preliminary

Report”).

Syngenta reinforced that vacuum by keeping critical

voices off EPA’s Scientific Advisory Panel. In 2005,

the company orchestrated opposition to a researcher’s

nomination “with care” so the effort “cannot be

attributed to Syngenta.” Botham.Dep. 675-81, 685-89,

696. In 2013, Syngenta told EPA that paraquatrelated brain cell loss without disclosing the Marks

studies “was not reproducible”; in 2017, it told EPA

“There are No Effects of Paraquat in Animal Models”—a statement a corporate designee conceded

“would not be correct as written.” Dixon.Dep. 208,

211-18, 236-37, 242-44. EPA’s 2019 systematic review

considered only 11 of 217 identified animal studies,

finding “limited, but insufficient epidemiologic

evidence.” EPA, Paraquat Dichloride: Systematic

Review 4-5, 89 (June 26, 2019). Its 2021 Interim

13

Decision imposed new restrictions but again declined

to address Parkinson’s. EPA, Paraquat Dichloride:

Interim Registration Review Decision 17-18 (July

2021).

Independent actors have attempted to fill these

gaps. In 2015, a working group at the International

Agency for Research on Cancer—whose assessments

“are generally recognized as authoritative,” Fed. Jud.

Ctr., Reference Manual on Scientific Evidence 20, 564

n.46 (3d ed. 2011)—concluded glyphosate probably is

carcinogenic to humans. RA48 (¶ 50). California then

categorized glyphosate as a chemical known to cause

cancer. In April 2022, EPA wrote it “could approve” a

California-proposed warning informing consumers

that “[IARC] classified glyphosate as probably carcinogenic to humans” while “US EPA has determined

that glyphosate is not likely to be carcinogenic to

humans.” RA57. That letter has been withdrawn.

California likewise has regulated paraquat since

1974. See DuTeaux, Preliminary Report 17. Agricultural use requires a county-issued permit and is

subject to restrictions on aerial spraying and use near

schools and residences. See Cal. Code Regs. tit. 3,

§§ 6420(a), 6466, 6470; Cal. Food & Agric. Code

§§ 14001-14015. At least 10 States have considered

or adopted measures to ban or restrict paraquat. See

Am. Parkinson Disease Ass’n, Paraquat is banned in

70+ countries, but still legal in the US (Feb. 24, 2026).

4. Soon after IARC concluded glyphosate probably

causes cancer, thousands of Roundup-exposed plaintiffs brought actions consolidated in a federal MDL.

In 2021, Monsanto’s parent company, Bayer,

announced that it would discontinue glyphosatebased Roundup products for the residential market.

Although farmers continue to use glyphosate-

14

containing Roundup, Monsanto claims it has used

different active ingredients in consumer Roundup

since 2023.

In February 2026, Monsanto proposed a nationwide

settlement binding all persons who bought, applied,

or even saw Roundup applied in the United States,

but excluding judgments now on appeal. Class Action

Settlement Agreement §§ 2.1, 2.1(b)(iii), King v. Monsanto Co., No. 2622-CC00325 (Mo. Cir. Ct. Feb. 17,

2026). After preliminary approval in March, Bayer

explained that this Court’s review would affect only

“outstanding damage awards subject to pending

appeals, which are not covered by the settlement.”4

That universe consists of two cases—this one and

Monsanto Co. v. Anderson, No. 25-1042 (U.S.).

Paraquat applicators have pursued parallel protections through state-law litigation, bringing claims

including failure to warn. In 2021, the Judicial Panel

on Multidistrict Litigation centralized the federal

actions in the Southern District of Illinois. The

district court largely has denied defendants’ motions

to dismiss, including on preemption. On March 3,

2026, Syngenta announced that it would cease global

production of paraquat as of June 2026.

4 Bayer, Missouri court grants preliminary approval of

Roundup™ class settlement to resolve current and future claims

(Mar. 4, 2026).

15

ARGUMENT

I. FIFRA DOES NOT EXPRESSLY PREEMPT

LABEL-BASED FAILURE-TO-WARN CLAIMS

Express preemption turns primarily on “the language of the pre-emption statute and the statutory

framework surrounding it.” Medtronic, Inc. v. Lohr,

518 U.S. 470, 486 (1996) (cleaned up); see Carson v.

Monsanto Co., 72 F.4th 1261, 1267 (11th Cir. 2023) (en

banc). FIFRA “authorizes a relatively decentralized

scheme that preserves a broad role for state regulation.” Bates, 544 U.S. at 450. “Most significantly,

States may ban or restrict the uses of ” EPA-approved

pesticides, and they may register pesticides for uses

beyond those approved by EPA. Id. (citing § 136v(a),

(c)); see also § 136w-1 (granting States primary enforcement responsibility for use violations).

That framework accommodates state-law failure-towarn claims based on inadequate labeling, even where

EPA has not required the warning. Monsanto’s and

the government’s contrary arguments reflect a misunderstanding of both FIFRA’s allocation of regulatory authority and state failure-to-warn law.

A. Failure-To-Warn Claims Like Respondent’s

Are Consistent With FIFRA, Which Reserves

Significant Authority To States

1. FIFRA expressly delegates States “authority”

to “regulate” the “sale or use of any federally registered pesticide,” except that States may not permit

what federal law prohibits. § 136v(a). FIFRA also

authorizes State registrations of pesticides to accommodate “special local needs,” and such registration

“shall authorize distribution and use only within such

State.” § 136v(c)(1).

16

That affirmative authorization for States to regulate “use[s]” encompasses state tort claims, which

supplement federal and state pesticide regulations.

Although FIFRA itself “does not provide a federal

remedy to [those] who are injured as a result of a

manufacturer’s violation of FIFRA’s labeling requirements, nothing in § 136v(b) precludes States from

providing such a remedy.” Bates, 544 U.S. at 448.

There is a “long history of tort litigation against manufacturers of poisonous substances.” Id. at 449-51.

This Court thus observed that “[p]rivate remedies

that enforce federal misbranding requirements would

seem to aid, rather than hinder,” FIFRA’s functioning.

Id. at 451.

As this Court concluded in Bates, § 136v(b) does not

expressly preempt state common-law suits. That

“narrow” preemption provision, id. at 452, “prohibits

only state-law labeling and packaging requirements

that are ‘in addition to or different from’ the labeling

and packaging requirements under FIFRA,” id. at 447

(quoting § 136v(b)) (emphasis in Bates). It “calls for

an examination of the elements of the common-law

duty at issue.” Id. at 445. For a state tort claim to

be preempted, it must set forth (1) “a requirement

‘for labeling or packaging’ ” (2) “that is ‘in addition to

or different from’ ” one of FIFRA’s requirements. Id. at

443-44 (quoting § 136v(b)) (emphases in Bates).

The preemption inquiry thus proceeds in two steps.

Courts first ask whether a state-law claim imposes

any requirement for pesticide labeling or packaging.

“A requirement is a rule of law that must be obeyed.”

Id. at 445. Claims that would not require manufacturers to “label or package their products in any

particular way” are not preempted. Id. at 444; see id.

(“petitioners’ claims for defective design . . . are not

17

pre-empted”). For example, Bates found it “perfectly

clear” that common-law claims “that require manufacturers to design reasonably safe products” and “use

due care in conducting appropriate testing of their

products” are not preempted. Id.

Next, courts ask whether the state-law labeling

requirement is “in addition to or different from those

required under [FIFRA].” § 136v(b). Common-law

duties are not preempted if they are “equivalent to,

and fully consistent with, FIFRA’s misbranding provisions” and the “relatively few regulations that refine

or elaborate upon FIFRA’s broadly phrased misbranding standards.” Bates, 544 U.S. at 447, 453 n.28;

see id. at 454 (“[A] manufacturer should not be held

liable under a state labeling requirement subject to

§ 136v(b) unless the manufacturer is also liable for

misbranding as defined by FIFRA.”). In other words,

FIFRA does not preempt state-law claims that impose

“parallel requirements” to those in FIFRA. Id. at 447.

2. FIFRA does not expressly preempt state-law

failure-to-warn claims where EPA has not imposed

specific warnings. First, such claims are a permissible

exercise of the state authority to regulate pesticide use

that § 136v(a) preserves. Under FIFRA’s decentralized scheme, EPA is not the final arbiter of how pesticides may be used—States are. Section 136v(a) provides that “[a] State may regulate the sale or use of

any federally registered pesticide or device in the

State.” That authority is sweeping: it includes the

power to ban a federally registered pesticide outright,

even one EPA considers properly labeled. See Bates,

544 U.S. at 446. And FIFRA confers on States

“primary enforcement responsibility” for pesticide use

violations. § 136w-1. Because FIFRA does not dictate

how pesticides must be used, state-law requirements

18

governing use do not impose requirements “in addition to or different from” any federal use requirement.

State failure-to-warn claims operate within that

preserved authority, at least where a manufacturer

could have satisfied its duty by informing users

how to use the product safely. Here, for example,

Monsanto could have provided Durnell PPE instructions like those it gives to agricultural users. See

5 Tr. 3423:13-15 (“Monsanto gives the most stringent

warnings to the most sophisticated users.”). Durnell

testified he would have heeded them. 4 Tr. 2508:162509:19. A warning instructing a consumer to wear

gloves when spraying a weedkiller is a use instruction

that must, as a practical matter, appear on the label.

It thus falls within the state authority § 136v(a) preserves without being negated by the limited carveout

of § 136v(b).

This Court confronted a closely related issue in

Bates, where “Congress [had] amended FIFRA to

allow EPA to waive efficacy review of newly registered

pesticides.” 544 U.S. at 450. The Court held that

this gap in federal oversight did not preempt statelaw claims, explaining that it was “unlikely that Congress considered a relatively obscure provision like

§ 136v(b) to give pesticide manufacturers virtual immunity from certain forms of tort liability,” including

the efficacy-related claims there. Id. The same logic

applies here: EPA’s lack of final authority over use is

a reason to preserve state authority, not to preempt it.

Second, nothing in FIFRA prohibits a State from

requiring additional warnings to address state or local

concerns, so long as those requirements do not result

in labeling that is “in addition to or different from”

federal requirements. Where a warning requirement

19

can be implemented through nationally uniform labeling, § 136v(b) is not implicated: “EPA approves only

one label per pesticide,” and, “[i]n approving a labeling

change, EPA substitutes a new nationally uniform

label.” Brief Amicus Curiae for the United States in

Support of Plaintiffs-Appellants 17, Etcheverry v. TriAg Serv., Inc., 993 P.2d 366 (Cal. 2000) (No. S072524,

filed Mar. 1999). Thus, even state-specific instructions are routinely reflected in manufacturers’ nationally uniform labeling. See Bates, 544 U.S. at 435 (noting supplemental label for Strongarm applicable in

New Mexico, Oklahoma, and Texas); infra p.27.

Third, even apart from § 136v(a), state-law warning

claims are not preempted because—at most—they

impose parallel requirements to FIFRA’s. As the

court of appeals observed, “Missouri’s strict liability

failure to warn cause of action is fully consistent”

with FIFRA’s requirements. Pet.App.6. The same is

true of failure-to-warn causes of action under other

States’ law. See, e.g., Carson v. Monsanto Co., 92

F.4th 980, 992 (11th Cir. 2024) (Georgia); Hardeman

v. Monsanto Co., 997 F.3d 941, 955 (9th Cir. 2021)

(California). These claims are “equivalent to, and fully

consistent with, FIFRA’s misbranding provisions,”

Bates, 544 U.S. at 447, not preempted.

Bates instructs that courts weighing claims of parallel requirements examine the elements of the claim.

See id. at 445; id. at 456-57 (Thomas, J., concurring in

the judgment in part and dissenting in part). Here,

Durnell first had to prove at trial that Monsanto failed

to “give an adequate warning of the danger” posed by

Roundup. Pet.App.6. That duty tracks § 136(q)(1)(G),

which requires a warning “necessary” and “adequate

to protect health.”

20

Durnell’s claim also requires warnings in narrower

circumstances than FIFRA does.5 FIFRA requires

adequate safety warnings no matter the consumer’s

knowledge. § 136(q)(1)(G). Missouri requires a warning only if the product is “unreasonably dangerous

when put to a reasonably anticipated use without

knowledge of its characteristics.” 5 Tr. 3378:19-21;

see Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo.

2011); JA159-60 (jury instruction).

Durnell’s failure-to-warn claim thus functionally

enforces FIFRA’s misbranding prohibition. “[A] state

cause of action that seeks to enforce” FIFRA “ ‘does not

impose a requirement that is “different from, or in

addition to,” requirements under federal law,’ ” and so

is not preempted. Bates, 544 U.S. at 447-48 (quoting

Lohr, 518 U.S. at 513 (O’Connor, J., concurring in part

and dissenting in part)).

B. Monsanto’s Express-Preemption Arguments

Lack Merit

Monsanto’s cornerstone argument is that EPA’s

decision to register a pesticide and approve its label

imposes a preemptive “requirement” under FIFRA.

That argument always has been incorrect, but it is

even less persuasive now that the Ninth Circuit has

vacated the reasoning EPA used when registering

glyphosate and EPA has not challenged that vacatur.

1. After an 11-year re-registration process that

began in 2009, EPA failed to sustain its initial view

that glyphosate was not likely to cause cancer.

The Ninth Circuit held that EPA lacked substantial

evidence for that position and that its reasoning was

“the hallmark of arbitrary action.” NRDC, 38 F.4th at

51.

5 FIFRA does not expressly preempt “narrower” state requirements. Bates, 544 U.S. at 447 n.23.

21

Although glyphosate remains registered, any

preemptive effect of registration is nil. A vacated

agency decision has no legal effect. “In essence, a

vacatur order takes the unlawful agency action off the

books, which is an entirely appropriate response when

a plaintiff successfully establishes that the agency’s

conduct violates the law.” Kiakombua v. Wolf, 498 F.

Supp. 3d 1, 50 (D.D.C. 2020) (Jackson, J.) (cleaned up).

The D.C. Circuit therefore has vacated an agency

order because it “relied not only on [an already-vacated

order] but also on its defective reasoning.” WorldCom,

Inc. v. FCC, 246 F.3d 690, 696 (D.C. Cir. 2001).

EPA’s registration of glyphosate cannot support

preemption because its “defective reasoning” about

carcinogenicity has been vacated. Even so, Monsanto

cites (at 17, 31, 49) EPA’s statement that its “underlying scientific findings regarding glyphosate, including its finding that glyphosate is not likely to be

carcinogenic in humans, remain the same.” EPA, EPA

Withdraws Glyphosate Interim Decision (Sept. 23,

2022). That bare statement has no legal effect, much

less a preemptive one.

2. Even apart from the glyphosate-specific

vacatur, EPA’s registration and approval of labeling

cannot immunize a manufacturer from tort liability.

That conclusion flows from FIFRA’s text, structure,

and Monsanto’s own labeling practices.

Text. FIFRA provides explicitly in § 136a(f )(2) that

registration is only “prima facie evidence” that a

pesticide complies with the statute—that is, they are

“not final” but may be rebutted. United States v. ICC,

337 U.S. 426, 435 (1949). Registration thus is not “a

defense for the commission of any offense under

[FIFRA].” § 136a(f )(2).

22

Section 136a(f )(2) provides in full:

(2) Registration not a defense

In no event shall registration of an article be

construed as a defense for the commission of any

offense under [FIFRA]. As long as no cancellation

proceedings are in effect registration of a pesticide

shall be prima facie evidence that the pesticide, its

labeling and packaging comply with the registration provisions of [FIFRA].

Three conclusions follow. First, a pesticide can be

“registered but nevertheless misbranded.” Bates, 544

U.S. at 438. Second, EPA is not the ultimate arbiter

of whether labeling is adequate: even if the agency

approved a label, “a judge or jury” could “find that

[the] same label violates FIFRA.” Hardeman, 997

F.3d at 956; see Bates, 544 U.S. at 452 (“lay juries are

in no sense anathema to FIFRA’s scheme”). Third,

manufacturers have a continuing duty to update

labeling that is misbranded—retaining an EPAapproved but misbranded label is not a “requirement”

of FIFRA; it is a violation. Bates, 544 U.S. at 438.

A jury’s conclusion that an EPA-approved label

inadequately warned an injured plaintiff of the risks

is perfectly consistent with that scheme.

Structure. Statutory context reinforces that conclusion. First, the statute requires EPA to determine

whether manufacturer-drafted warnings are “necessary” and “adequate to protect [public] health” based

on manufacturer-submitted material. § 136(q)(1)(G);

see § 136a(c)(2), (c)(5)(B)-(D). Monsanto’s position

grants manufacturers immunity when labels they

draft are approved by EPA based on science they submit. No rational Congress would enact such a statute.

Second, as the United States previously informed

this Court, “EPA does not typically use the registra-

23

tion process to address [long-term] harms by requiring

chronic-risk warnings on a pesticide’s labeling.” U.S.

Hardeman Br. 11. The government now contends

(at 19 n.4) that EPA addresses chronic risks through

cancellation proceedings, but that is no answer. For

one thing, cancellation is rare: from 2010 to 2018,

EPA involuntarily cancelled just one pesticide registration. See Nathan Donley, The USA lags behind

other agricultural nations in banning harmful pesticides, 18 Envtl. Health #44, at 5-6 (2019).

For another, when EPA does act, the protracted

process is no substitute for adequate labeling. When

environmental groups petitioned EPA to cancel

chlorpyrifos’s registration in 2007, for example, EPA

“spent more than a decade” assembling a record and

employed “one delaying tactic after another.” League

of United Latin Am. Citizens v. Regan, 996 F.3d 673,

678 (9th Cir. 2021). Only after a Ninth Circuitimposed deadline did EPA ban chlorpyrifos on food

crops—and the Eighth Circuit then vacated that

ban as arbitrary and capricious. See Red River Valley

Sugarbeet Growers Ass’n v. Regan, 85 F.4th 881, 883

(8th Cir. 2023). After all that, chlorpyrifos remains on

the market.

Practice. If Monsanto were right (at 32-33) that

EPA-approved labels say exactly what is necessary to

protect human health—no more, no less—its own conduct would be inexplicable. The company has revised

Roundup’s labeling hundreds of times, including more

than 50 changes to the four products Durnell used.6

3. Monsanto’s counterarguments lack merit.

First, the company contends (at 38-39) that

§ 136a(f )(2) “is not a preemption provision at all.”

6 4 Tr. 2470:14-23, 2471:7-18, 2472:16-23, 2473:6-13; see

JA234-240.

24

But express preemption turns on “the language of

the pre-emption statute and the statutory framework

surrounding it.” Lohr, 518 U.S. at 486 (cleaned up,

emphasis added). Section 136a(f )(2)’s placement outside § 136v(b) is no reason to disregard it.

Because “EPA’s labeling determinations are not

dispositive of FIFRA compliance,” Monsanto offers

no basis to treat those determinations as any more

“conclusive as to which common law requirements are

‘in addition to or different from’ the requirements

imposed by FIFRA.” Hardeman, 997 F.3d at 956. Just

as a manufacturer with a registered pesticide still

may be liable for misbranding under FIFRA, it likewise may be subject to parallel liability under state

law. See Bates, 544 U.S. at 451 (discussing “[p]rivate

remedies that enforce federal misbranding requirements”).

Second, Monsanto leans heavily (at 39-40) on Riegel

v. Medtronic, Inc., 552 U.S. 312 (2008). But Riegel

involved the Medical Device Amendments (“MDAs”),

which operate differently from FIFRA.

The MDAs contain no provision like § 136a(f )(2),

which provides that registration is only “prima facie

evidence” of compliance, not proof that labeling is

“adequate to protect health,” § 136(q)(1)(F), (G). See

U.S. Hardeman Br. 18-19. The MDAs also reserve far

less power for States. Under FIFRA, States may ban

the sale or use of a pesticide outright. See § 136v(a).

The MDAs have no analogue.

More generally, the statutory schemes differ. The

MDAs “swept back” “state obligations” and “imposed

a regime of detailed federal oversight,” limiting States

from imposing nearly any condition “ ‘which relates to

. . . safety or effectiveness.’ ” Riegel, 552 U.S. at 316

(quoting 21 U.S.C. § 360k(a)(2)). FIFRA, by contrast,

25

“authorizes a relatively decentralized scheme that

preserves a broad role for state regulation.” Bates,

544 U.S. at 450 (citing § 136v(a)); see also § 136w-1

(conferring on States “primary enforcement responsibility”). Thus, “different federal statutes and regulations may . . . lead to different pre-emption results.”

PLIVA, 564 U.S. at 626.

Federal product review likewise differs. For medical

devices, “premarket approval is specific to individual

devices” and requires FDA to determine that the

device “offers a reasonable assurance of safety and effectiveness.” Riegel, 552 U.S. at 322-23. By contrast,

FIFRA’s misbranding provisions impose only “general

standards.” Bates, 544 U.S. at 453 n.27; see Lohr, 518

U.S. at 501 (no preemption where federal requirements “reflect[ed] important but entirely generic

concerns”). And EPA has acknowledged that it has

not evaluated glyphosate “formulations” like Roundup

and that, “if at any time[ ] information becomes available that indicates adverse human health effects of

concern for exposure to glyphosate or its formulations,

EPA intends to review it and determine the appropriate regulatory action.” Hardeman, 997 F.3d at 952

(cleaned up). EPA similarly has not evaluated paraquat’s Parkinson’s risks.

Third, Monsanto and the United States focus on a

“cancer warning.” That framing misapprehends state

failure-to-warn law and state use restrictions, which

do not turn on whether a manufacturer used a particular phrase. To avoid liability, Monsanto need not

have adopted a specific “cancer warning,” just as Syngenta need not adopt a specific “Parkinson’s disease

warning.” Rather, state law requires manufacturers

to provide “adequate instructions” and warnings to

reduce or avoid risks. Restatement (Third) of Torts:

Products Liability § 2 cmt. i (1998).

26

Here, the record reflects multiple ways Monsanto

could have satisfied that obligation. It could have

provided consumers like Durnell a PPE warning.

Or it could have added “links to relevant scientific

evidence and materials related to whether exposure to

Roundup Products causes [non-Hodgkin lymphoma].”

Class Action Settlement Agreement at PDF p.167, In

re Roundup Prods. Liab. Litig., No. 3:16-md-2741-VC,

ECF #12509-2 (N.D. Cal. Feb. 3, 2021).7 Monsanto

and the government ignore these options.

Fourth, Monsanto argues (at 36-38) that state-law

warnings would undermine national “uniformity.”

But Bates cautioned against “overstat[ing] the degree

of uniformity and centralization that characterizes

FIFRA,” explaining that the statute “authorizes a

relatively decentralized scheme that preserves a

broad role for state regulation.” 544 U.S. at 450.

To be sure, FIFRA’s preemption provision plays

“a narrow, but still important, role”: It promotes

uniformity in the presentation of labels—ensuring

that they use the same font, font size, color, and

similar features nationwide. It also bars state-law

requirements that conflict with the few specifically

listed federal ones. Id. at 452. Thus, a claim that

a label should have said “DANGER” rather than

“CAUTION” would be preempted where federal regulations specify those terms. Id. at 453 (citing 40 C.F.R.

§ 156.64).

No such federal requirement exists here. EPA has

not mandated or prohibited warnings about glyphosate’s chronic risks, just as it has not addressed

paraquat’s long-term neurotoxicity. FIFRA’s “narrow”

preemption provision therefore does not apply.

7 The district court rejected that settlement on other grounds,

and Monsanto never made that request of EPA.

27

Nor does real-world practice support Monsanto’s

uniformity concerns. Labels already incorporate

state-specific instructions. Roundup’s label directs

users to “requirements specific to your State or Tribe”

and to consult state regulators. BIO.App.30a. It also

includes aerial spraying restrictions in California and

Arkansas, BIO.App.35a-40a, and differing application

rates for sugarcane in Florida, Hawaii, Louisiana, and

Texas, BIO.App.42a-43a. Paraquat also is subject

to longstanding state-specific regulation. Supra p.13.

Monsanto complains (at 36-38) about 50 different

state labeling regimes, but never explains why it poses

a “uniformity” problem to offer state-specific instructions for sugarcane but not cancer on one label.

Finally, the government’s overwarning concern

has no merit. U.S. Br. 34 (citing Merck Sharp &

Dohme Corp. v. Albrecht, 587 U.S. 299, 304 (2019)).

Merck addressed prescription drugs—products whose

therapeutic benefits patients may need, and where

excessive warnings might deter necessary treatment.

No comparable concern exists here. A Roundup

consumer or paraquat applicator who chooses to wear

gloves or PPE, switch products, or pull weeds by hand

suffers no adverse health effect. The government thus

imports a concern about patients forgoing medication

into a context where the consequence is a change in

weed-management practices.

II. FIFRA DOES NOT IMPLICITLY PREEMPT

LABEL-BASED FAILURE-TO-WARN CLAIMS

The court of appeals also correctly held Monsanto

cannot show implied preemption. That “is a demanding defense.” Wyeth, 555 U.S. at 573. Before the court

below, the company did not even try to carry its heavy

burden: “The record contains no evidence that Monsanto either informed the EPA of the justifications

28

for a change to its warning label or that the EPA

has informed Monsanto it would not approve such a

warning.” Pet.App.9.

Here, Monsanto draws its implied-preemption arguments from prescription-drug cases under the Federal

Food, Drug, and Cosmetic Act. This Court conducts

an implied-preemption analysis in such cases because

Congress has “declined to enact [an express-preemption]

provision for prescription drugs.” Wyeth, 555 U.S. at

567. Those cases have dubious relevance here because

FIFRA has an express-preemption provision. See

Bates, 544 U.S. at 459 (Thomas, J., concurring in judgment in part and dissenting in part) (favorably noting

“this Court’s increasing reluctance to expand federal

statutes beyond their terms through doctrines of

implied pre-emption”). On their own terms, Monsanto’s

implied-preemption arguments lack merit.

1. Monsanto’s first implied-preemption theory

(at 43-47) rests on the premise that it could not add a

cancer warning to Roundup’s labeling without EPA’s

approval. That premise is false, and the arguments

that flow from it misread PLIVA.

In PLIVA, the Court addressed implied preemption

in the generic-drug context, where federal law

imposes a “duty of sameness” requiring generic labels

to match their brand-name counterparts. 564 U.S.

at 616. Because of that duty, generic manufacturers

cannot unilaterally change their labels—they only

may “ask the agency to work toward strengthening

the label” for both generic and brand-name drugs. Id.

Absent “the Federal Government’s special permission

and assistance” with the brand-name companies,

they cannot independently satisfy state-law duties

to provide adequate warnings. Id. at 623-24. That

constraint drove the Court’s holding: when federal

29

law affirmatively prohibits a manufacturer from

acting independently, state-law duties requiring such

action are preempted.

FIFRA could hardly be more different. First, it

places primary responsibility for labeling on the

manufacturer, not the agency. § 136a(c)(1)(C). When

label changes are necessary, the registrant drafts

and submits revised labeling to EPA, which “shall”

approve the change if it complies with FIFRA.

§ 136a(f )(1); 40 C.F.R. § 152.50(e). That process bears

little resemblance to the regime in PLIVA, which

depended on “a Mouse Trap game” of coordination

with brand-name manufacturers and afforded no

unilateral authority to the regulated party. 564 U.S.

at 619.

Second, pesticide registrants are not bound by

generic drugmakers’ “duty to keep the label the same.”

Id. at 618. Instead, they must abide by FIFRA’s duty

to keep the label current—that is, the “continuing

obligation to adhere to FIFRA’s labeling requirements.” Bates, 544 U.S. at 438.

Third, FIFRA differs further by permitting certain

label changes without prior EPA approval. Under

EPA regulations, registrants may implement specified

modifications through a notification process, subject

to later agency review. See 40 C.F.R. § 152.46(a); Off.

of Pesticide Programs, EPA, Pesticide Registration

Notice 98-10 (Oct. 22, 1998). Although Monsanto

responds (at 31) that adding a cancer warning would

not qualify for such treatment, “EPA has repeatedly

permitted pesticide manufacturers to use the notification procedure to add notices related to cancer to their

products’ labels.” Hardeman, 997 F.3d at 959. For

example, “Bayer CropScience notified EPA ‘of a minor

labeling amendment for LARVIN Technical,’ inform-

30

ing EPA that ‘as required by California Proposition

65, the following statement has been added to the

label, “This product contains a chemical known to

the state of California to cause cancer.” ’ ” Id. at 959

n.10 (cleaned up). Had Monsanto—now a Bayer subsidiary—taken the same approach here, it could have

prevented Durnell’s injuries.

2. Monsanto’s second theory (at 47) is that it

cannot add a “cancer warning” to Roundup labels

because EPA would not accept it. Again under the

FDCA, failure-to-warn claims are preempted when

there is “clear evidence” that FDA would not have

approved the warning that state law requires. Wyeth,

555 U.S. at 571. But “clear evidence” rests on “agency

actions taken pursuant to the [agency’s] congressionally delegated authority”: “notice-and-comment rulemaking,” an order “formally rejecting a warning

label,” or “other agency action carrying the force of

law.” Merck, 587 U.S. at 315-16.

There is no “clear evidence” showing Durnell’s

failure-to-warn claim is preempted. First, EPA has

promulgated no notice-and-comment-based regulation requiring certain warnings on glyphosate-based

product labels and barring others. Monsanto instead

points (at 49-50) to EPA’s 1993 Reregistration Eligibility Decision. EPA, Reregistration Eligibility Decision (RED) Glyphosate (Sept. 1993). But that decision

imposed labeling requirements only with respect to

water contamination and workplace safety; it did not

forbid the warnings at issue here. Id. at 72-73.

Second, EPA has taken no formal action rejecting a

warning adequate to prevent Roundup-caused harms,

and Monsanto never has asked for such a warning.

Third, EPA has taken no other action with the force

of law disapproving a state-law-required warning.

31

Monsanto cites (at 50) a 2019 letter from an EPA

employee concluding that glyphosate is “not likely

to be carcinogenic to humans” and that California’s

warning of glyphosate’s potential carcinogenic effects

was “false or misleading.” Pet.App.38-39. But the

company neglects to mention that every court to

consider this letter has held that it “did not carry

the force of law because it neither reflected sufficient

formality nor created a rule of law that must be

obeyed.” Carson, 92 F.4th at 996 (citation omitted);

see Hardeman, 997 F.3d at 957 (same).

Monsanto also says (at 50) that EPA’s decisions

declining to require a cancer warning—whether

through its registration review process or its approval

of individual labels—carry impossibility-preemptive

force. But this Court never has held that agency

silence can speak that loudly. See Sprietsma v.

Mercury Marine, 537 U.S. 51, 67-68 (2002) (agency

decision not to regulate does not preempt state

common-law claims).

III. MONSANTO’S POSITION WOULD HAVE

SUBSTANTIAL NEGATIVE EFFECTS

Monsanto’s position would bar essentially all failureto-warn claims based on a pesticide’s “labeling.” Such

immunity for pesticide manufacturers would hinder

FIFRA itself. As this Court observed in Bates, statelaw tort actions “may aid in the exposure of new

dangers associated with pesticides,” giving manufacturers “added dynamic incentives to continue to keep

abreast of all possible injuries stemming from use of

their product so as to forestall such actions through

product improvement.” 544 U.S. at 451. That’s true

for consumers who have used Roundup products for

decades around their homes and neighborhoods. And

the same is true for plaintiffs in the Paraquat MDL,

32

whose lengthy exposure to small doses of the pesticide

left them with Parkinson’s. Their extended exposure

can help inform EPA about the long-term effects of

pesticides and aid the agency in carrying out “its task

of assessing the environmental and health dangers

posed by” poisonous substances. Id. at 440.

That task is exceptionally important. 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. Syngenta likewise carried out a protracted campaign of misinformation—one deliberately aimed at

influencing EPA itself. Supra pp.9-11. Those efforts

came to light through litigation, not EPA’s oversight.

These companies’ practice of hiding their products’

defects shows why the proper scope of FIFRA preemption matters. As the United States once informed this

Court, there is “the possibility that the manufacturer’s

submissions to EPA may be inaccurate or incomplete,

or that evolving science will cast doubt on the

adequacy of approved labeling.” U.S. Hardeman Br.

12 n.3. If FIFRA preempted the very suits that expose

those deficiencies, manufacturers could profit from

their own nondisclosure. Regulatory silence—some of

it of their own making—would become a shield

against accountability.

Bates rejected that result, and rightly so. Congress

has not disturbed Bates, and Monsanto does not ask

this Court to overrule it. If FIFRA does not preempt

state-law suits for crop damage, it surely does not

preempt suits for grievous injury and death.

CONCLUSION

The state court of appeals’ judgment should be

affirmed.

33

Respectfully submitted,

ROBIN L. GREENWALD

WEITZ & LUXENBERG P.C.

700 Broadway

New York, NY 10003

(212) 558-5500

KHALDOUN A. BAGHDADI

WALKUP, MELODIA, KELLY

& SCHOENBERGER

650 California Street

26th Floor

San Francisco, CA 94108

(415) 212-4350

March 31, 2026

DAVID C. FREDERICK

Counsel of Record

DEREK C. REINBOLD

KYLE B. GRIGEL

ALYSSA J. PICARD

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.