Loading summary
Transcript43 lines
- [00:00]
LPL Financial Advertiser
What if you could have more wins, more support, more sound effects? At LPL Financial, we like the sound of that because LPL offers more advisors. What if you could have more ways to help your clients ready to invest? What if you could find an advisor that really understands you when it comes to your finances, your business, your future? At lpl, we ask what if you could Paid Advertisement Investing involves risk, including potential loss of principal. LPL Financial LLC Member FINRA SIPC Small businesses are the pulse of every community. They bring people together, create opportunities and drive growth. Chase for Business helps business owners like you with personalized guidance and convenient digital tools all in one place. With that guidance and your determination, you can take your business farther and help build a brighter future for your community. Learn more@chase.com business chase for business Make More of what's yours the Chase Mobile app is available for select mobile devices. Message and data rates may apply JPMorgan Chase Bank NA member FDIC Copyright 2026 JPMorgan Chase Co.
- [01:08]
IBM Representative
So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now a global workforce of 300,000 can use AI to fill their HR questions, resolving 94% of common questions, not noise proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that move the business. Let's create smarter business. IBM.
- [01:53]
Holly From
Welcome to the Votes and Verdicts podcast hosted by Bloomberg Intelligence, the investment research arm of Bloomberg lp. In this podcast series, we talk about the intersection of business policy and law. My name is Holly From. I'm an analyst with Bloomberg Intelligence covering consumer and industrials litigation. Today's podcast will focus on litigation facing buyers Monsanto overs Weed Killer Roundup. I'm delighted to be joined by Professor William Boyd. Professor Boyd is the Michael J. Klein Chair and Professor of Law at UCLA School of law, professor at UCLA's Institute of the Environment and Sustainability, and a faculty Co Director of the Emmett Institute of On Climate Change and the Environment. Professor Boyd's primary area of research is in energy law and regulation, climate change and environmental law. He's written extensively on these topics and also has addressed Bayer's glyphosate litigation specifically as background Bayer has been sued by over 100,000 consumers who say their weed killer roundup causes non Hodgkin's lymphoma. Bayer has faced billions in jury verdicts, and in 2020 it agreed to pay around $11 billion to resolve around 100,000 cases. And though Bayer withdrew Roundup with glyphosate from the residential market in 2023, there are still 67,000 cases pending. Around 67,000 cases last time I checked. And anyone who gets sick in the future from Roundup prior to its withdrawal could still sue. Bayard filed a petition to the US Supreme Court seeking to have it review a lower court ruling, finding that state failure to warn claims were not preempted by federal pesticide law, otherwise known as ffra. The Supreme Court agreed to hear the case and heard arguments on April 27th. And now we are awaiting the Supreme Court's decision, which may come in June. Professor, thanks again so much for joining us. Can you explain what Bayer is arguing to the US Supreme Court?
- [03:45]
Professor William Boyd
Sure. Thanks, Holly, and thanks for having me on the podcast. So. So, Bear. I say Bear because that's what I grew up calling it. Bear, Bear. Bear Baer is arguing that the jury verdict in a Missouri state tort case that awarded damages to the plaintiff in that case, John Durnel, on the theory that Bear had failed to warn Durnel and others using Roundup that Roundup could cause cancer is preempted by the federal statute fifra, which says very clearly that the states are not allowed to impose any labeling requirements that are in addition to or different from those required as part of EPA's registration of the pesticide. And these cases really took off after the International Agency for Research on cancer concluded in 2015 that glyphosate, which is the active ingredient in Roundup, is probably carcinogenic to humans, even though EPA has not reached such a conclusion. This has led to tens of thousands of lawsuits, as you noted, some of which are based on failure to warn. That is in light of the iarc, the International Agency for Research on Cancer conclusion that glyphosate is probably carcinogenic. Monsanto and Bayer should have warned the users of Roundup that the product was probably carcinogenic. So Bayer has sued and is arguing that under fifra, the federal statute that regulates pesticides, only EPA can decide what goes on the label. And in the case of Roundup, EPA has not required any such warning with respect to cancer. If Bayer wins, it will knock out a lot of the tort cases that have been filed against it on the basis of failure to warn. And this also potentially ramps up the effort to settle these cases, which is obviously a live issue right now. But all of that sort of depends in part of what people think will happen with the Supreme Court and as you say, we will know likely by the end of the month or early July at the latest.
- [05:38]
Holly From
So, professor, you've said that while the business press has suggested that some of the justices were skeptical of Bayer's arguments during the April 27 oral argument, the overall tenor of the argument suggested to you that the Court is clearly leaning in Byers favor. Can you explain why? You think so?
- [05:55]
Professor William Boyd
Sure. Yeah. So I just think there's a pretty clear path here for the Court to find preemption. And I think even though some of the conservative justices posed questions to Bear's lawyer, I felt like he had good responses and they seemed generally satisfied with those responses. So I read those as really kind of probing various points of the argument, but not really pushing for a way to rule against Bayer. Now, I could be totally wrong about this, and we may well be surprised, but given the Roberts court's kind of general pro business stance, plus the clear statutory provision at issue here, I think it's easier to imagine a scenario where you get five or more justices going with Bayer than it is to see a scenario or to imagine a scenario where you get five or more Justices stretching a bit to go with the plaintiffs.
- [06:49]
Holly From
So when you're talking about the statutory provision, are you talking about the provision that says that buyer can't add to or differ or estate can't add to or differ from the label that the EPA approves?
- [07:00]
Professor William Boyd
That's right. The express preemption language of the statute, which basically just says states cannot include kind of or require anything on a label that is in addition to or different from the EPA approved label.
- [07:14]
Holly From
And we talked earlier and you said that if Buyer's argument depends on its proposition that an EPA registered product can never be misbranded, you think they'll lose. Can you explain what you mean by that?
- [07:25]
Professor William Boyd
Sure. Yeah. So first, I don't think their argument totally depends on this, but I also don't think that the justices pushed Bayer hard enough on this point. And Justice Gorsuch kind of early in the argument did push the lawyer for Bear, Paul Clement, a bit on this. And I think it raises a really kind of, I think, knotty set of issues which are really at the heart of the case. And so misbranding is clearly the big question in the case as I read it. And it's where Justice Jackson was trying to take her colleagues in the oral argument. And I know that we're going to come back to that. But let me make a couple of points here. So number one, Clearly, a pesticide can be misbranded if the manufacturer puts something on the label that is false or misleading or omits something that is required by EPA under the terms of the registration. The harder question is whether a pesticide can become misbranded if new health and safety information comes to light that renders the existing label problematic from a health and safety standpoint. And, and for whatever reason, EPA does not act or require a change to the label. Or even maybe EPA is suppressing or ignoring information that is relevant to health and safety. And so, as I read the statutory language on misbranded, it seems to contemplate cases where a label that is no longer adequate to protect public health of the environment, right. Is misbranded. So in light of the new information on glyphosate and cancer, the question then becomes whether it's the EPA approved label for Roundup are no longer adequate, in which case the pesticide is misbranded. Now, Behr argues on this point that the remedy here is cancellation, that is cancellation of the registration, and that if you're upset about, you know, EPA's progress in incorporating new information into a registration or a label, you can pursue a cancellation proceeding, that is, you move to suspend or cancel the registration rather than a finding of misbranding. And that then of course raises the question of whether you could ever have misbranding because of new health and safety information on the product that has come to light that renders the existing label inadequate, or if the only remedy is cancellation or suspension. I think the implication of Bayer's argument on cancellation is that you could never have this scenario. And Clement almost suggested as much in response to Justice Gorsuch. But that does seem contrary to, to the statutory language on misbranded. I do think that if pushed, Bayer could say that even if there could be a misbranding scenario along these lines, that's not what is happening here because EPA has looked at all this new health and safety information and it has concluded again and again that Roundup does not cause cancer, which then of course raises the question of whether EPA has faithfully discharged its responsibilities to assess the safety of Roundup, which is the subject of additional ongoing litigation in the Ninth Circuit. But that was not really before the Supreme Court here in this case. And I don't think the Supreme Court in this case is going to go into a detailed assessment of whether EPA is doing its job on the review of glyphosate safety.
- [10:46]
Holly From
So I was going to ask you why you don't think that buyer's argument depends on Clement's position that a product that's once registered can never be misbranded.
- [10:58]
Professor William Boyd
So as was just saying, I think they can say maybe there is a case, right. Where you could have new health and safety information that comes to light. EPA doesn't act on that. It's sitting on its hands. It's suppressing information, it's ignoring information, whatever the scenario is. Right. That it's so egregious that becomes misbranding. But that is not this case. I think that's a better place for them to be, but that's not the way. At least Clement was kind of answering Justice Gorsuch on this. So I think if they really push on this, it could be a problem for Behr, because if you look at the statutory language. Right. It's pretty clear that it seems to me to contemplate a situation where new health and safety information could render the existing label problematic and therefore the pesticide misbranded.
- [11:43]
Holly From
Right.
- [11:44]
Professor William Boyd
This is, I think, the heart of the case in some ways, if the plaintiffs are going to prevail.
- [11:49]
Holly From
Right. So the registration alone doesn't protect them. But here, just because of this factual scenario, the EPA has been discharging its duties properly. Is that the.
- [12:03]
Professor William Boyd
I think that's what they would argue. I think there is a question, and that's what's going on in the Ninth Circuit as to whether that is actually true. And that's the larger kind of context and backdrop of the case that makes this actually kind of a hard case in some ways. But I'm not sure that the Supreme Court is going to get into that.
- [12:18]
Holly From
Okay. If the court rejects the argument that the express preemption provision that we were talking about, which says that the states or states can't require a label that adds to or differs from the EPA approved one, if the court rejects the argument that that express provision doesn't preempt parallel state law, claims can buy or win any other way.
- [12:42]
Professor William Boyd
Yes. So. So Bear has a good. What you might call an even if argument. Right. So that is, even if Bear loses on express preemption, they are arguing that they still win on implied preemption or impossibility preemption. And this is a good illustration of the notion that even if are really the two most important words in litigation. Right. And so the argument here is a little tricky to follow, but it basically boils down to the claim that it would be impossible for Bayer to change the lab for Roundup unilaterally to comply with what the state courts in Missouri and other States are requiring, without violating federal law, which clearly requires that the pesticide registrant use the label that is approved by epa. That is the approved label. The label is the law, as Bayer argues. Right. So if Bayer tries to respond to a state jury verdict to change the label unilaterally, then they would be in violation of federal law because the label is the law. So put another way, it's impossible for Bear to change the label to do what the state court jury is asking them to do without violating federal law.
- [13:49]
Holly From
So I was going to ask this a little later, but on this topic, Justice Gorsuch also asked Beyer's lawyer if his argument boils down to an impossibility argument, like you say and like you were explaining. And Gorsuch said, if it does boil down to an impossibility argument, which is they couldn't comply with the state law because they couldn't amend the label without EPA approval, how does Bayer explain the fact that at some point the EPA did allow Bayer to change the label and include a cancer warning? And Paul Clement said that the EPA has said these were implementation mistakes. If this is true, do you think that the court could still find impossibility preemption?
- [14:35]
Professor William Boyd
I do. Because if we accept, as the government argued in its brief and as Clement noted, and as you noted, that EPA did make a, quote, mistake in allowing these additional cancer warnings in the past, one of which I think was tied to Proposition 65 here in California, then Bayer can still argue that as of today, it would be impossible for them to change the label and still comply with federal law. Now, I actually thought the hypothetical that Justice Gorcuch was using here in the argument was a little confusing because he seemed to be assuming that EPA had already made a finding of misbranding. But in any event, I think the overall structure of Bayer's argument was largely intact after this line of questioning. Right. And it basically says, first, we went on express preemption. Read the statute. The state court here, the state court jury here is essentially trying to impose a labeling requirement that is in addition to or different from the EPA approved label. Second, even if we lose on express preemption, we win on implied preemption or impossibility preemption, because the label is the law. Yes, EPA made some mistakes in the past by allowing unilateral change of label, but that's not, you know, our problem here, because in general, the law requires, the regime requires that the label is the law, and we can't unilaterally make changes to that label without violating federal law. Now, it is true, just to finish this thought, as both Justice Gorsuch and Justice Barrett suggested, that these two preemption arguments kind of bleed together. Right. That is, if it's impossible to follow state law and additional warnings. Right. Without violating federal law, that seems to in some ways restate the express preemption argument. And Clement sort of admitted that in his arguments. But I actually think there is a difference, a slight difference here. That is you, the court can go with express preemption. You can just look to the language of the statute, or you can look to the overall regulatory scheme and conclude that in this case, Bear cannot change the label without getting EPA approval. That is, it's impossible to change the label unilaterally to do what the state requires.
- [16:45]
Holly From
Right? Right. And they do have similar rulings in the context of generic drug makers. I think there is a Supreme Court case which says that if a manufacturer can't do independently what the state law is requiring of them, then the court would find preemption, and it found preemption in that case. But then Gorsuch did ask Bayer, why, if states can ban a pesticide, which they're allowed to do under FIFA, why can't they require Bayer to change the label, which is a lesser power? So why do you think Buyer doesn't lose based on that reasoning?
- [17:21]
Professor William Boyd
Yeah. So this is the idea that because the states have the greater power under FIFRA to ban or severely restrict a pesticide going over and above what EPA requires, they should also have the lesser power to change the label. So it's a version of the greater power includes the lesser power argument. But I think here you only have to look at the statute to see that Congress wrote the statute in a way that carves out labeling for preemption. And I think Justice Gorsuch was sort of pushing the government's lawyer on this, but I don't think she responded maybe the way that she could have or should have. Right. So while it may generally be the case that the greater power includes the lesser power, that is not the case here because Congress wrote the statute in a way that carves out and preempts the lesser power. And so I think all Bear has to do do is say look at what the statute says. And I think that's pretty easy.
- [18:15]
Holly From
Right? Right. Okay. So Roberts also was questioning the US Government's lawyer, the Solicitor General, who was arguing in favor of preemption, and he asked her, if it turns out states are right, that a pesticide is a carcinogen, it would be a good thing if they had the opportunity to call the danger to the attention of the people while the federal government is going through its process. So sometimes PEP takes longer than the states. So what do you make of that argument?
- [18:45]
Professor William Boyd
Yeah, so I agree with the underlying policy concern and I would be in favor as a matter of public health policy, of allowing states to move forward with warnings when new information becomes available. And EPA is not moving fast enough on a sort of blank slate. But I think this poses difficult implementation challenges and I think it's a bit shaky from a legal standpoint under FIFRA as drafted. Right. So on implementation, I think the question is, is at what point would we say that EPA has not acted quickly enough to then open the door for the states to move ahead? Epa, it seems to me, needs to have some time to complete its safety assessments, its reviews, it's its 15 year reviews. Though I agree 100% that they should not be able to sit on their hands, as it were. And so maybe if they miss certain deadlines for re registration. Right. The states could move ahead. But those are the kinds of kind of line drawing questions that would be, I think, raised by this sort of position. As for the legal basis, it seems to me that the states could simply exercise their greater power here and ban or severely restrict the pesticide without requiring a change of label if they had serious concerns. And EPA was not moving fast enough. Right. I think Clement and Bear would say you also initiate the suspension or make a petition to initiate a suspension or cancellation proceeding. Right. Now I do think that Roberts is grappling a bit here with the equities. And I think he's concerned to give kind of effect to the overall purpose of the statute, which is to ensure protection of public health and the environment from unreasonable risks. And there's a kind of broader institutional backdrop here where they're trying to kind of think about how the kind of tort, how tort law can drive new information into the regulatory process. But at the end of the day, it seems to me a lot of this depends on kind of policing EPA and sort of how well or quickly they're doing their job. And that's a difficult thing I think, for courts to be doing kind of day in and day out, if that makes sense.
- [20:55]
Holly From
Sense. Got it. So one of the other justices who was, who seemed to be, you know, also grappling with, you know, what is the, what is the thing that's doing the preempting here? That was Justice Thomas, but he also noted a distinction between pesticides and herbicides. In one of his questions, it was sort of an offhanded thing. Do you think this has any bearing or any read through as to what he thinks that the issue.
- [21:25]
Professor William Boyd
I found this confusing and honestly don't know what to make of it, if anything. So he seemed to be making a distinction between insecticides, right on the one hand and herbicides, but that's not really a difference that the statute cares about. Right. So glyphosate is what is called a desiccant. It disrupts plant metabolism and desiccates or dries out the plant until it dies. And the definition of pesticide under FIFRA includes desiccants. And the definition of pest under FIFRA includes weeds in addition to insects. So I don't think there's any question here that glyphosate is within the scope of fifh, if that is what he was kind of suggesting or questioning with this distinction. So I honestly don't know what he was getting at and I don't want to try to sort of suggest what he may have been trying to getting at in terms of the overall kind of posture up the case with this.
- [22:20]
Holly From
Got it. So in February, the President signed an executive order saying that production of glyphosate is a matter of national security and granted immunity pursuant to 707 of the Defense Production Act. You said you think this protects Monsanto from Roundup lawsuits. Can you explain why you think so? Sure.
- [22:44]
Professor William Boyd
Yeah. So the Defense Production act is a Korean War era statute that, among other things, allows the President to order certain industries to produce or do things as a matter of national defense and national security. And here, as you say, in February, President Trump issued an executive order invoking the Defense Production act and ordering Bayer and other manufacturers of glyphosate to continue producing glyphosate as a matter of national security. The Defense Production act also includes liability protection for those subject to these mandates under the Defense Production act, which basically says if you're producing a product pursuant to the Defense Production act, you are protected from liability associated with that product once it is out in the world. So as I read this, Bayer is now protected from liability for glyphosate as of the date of the executive order.
- [23:39]
Holly From
Right.
- [23:39]
Professor William Boyd
So this is prospective. And it's really important to note that this is prospective. It is not retrospective. So it does not do anything to resolve the liabilities associated with Roundup produced before the date of the executive order. It would only apply to liabilities associated with production going forward. Not insignificant, but Hardly an answer to Bayer's litigation worries.
- [24:00]
Holly From
So that's interesting. So if, like, a president could do that by the stroke of a pen, do you think that that could be taken away by the stroke of a pen?
- [24:11]
Professor William Boyd
Oh, yeah, no. I mean, I think, you know, you could have another president come in and issue an executive order that essentially revokes the prior executive order and ends the protections or the requirements under the Defense Production Act. And so that would obviously go back to the, you know, regime that existed before President Trump's executive order. But during the period in which that executive order is in place, I think they're protected from liability.
- [24:35]
Holly From
So we talked about this a little bit earlier. You said you think Justice Jackson will have a hard time convincing other justices to join her on her misbranding position. What position is that? And why do you think a majority won't join?
- [24:50]
Professor William Boyd
Yeah, to me, this is the most interesting part of the case. Right. So I think Justice Jackson is saying, look, FIFRA has these various provisions on misbranding, as we discussed at the beginning of this podcast. Right. Those provisions include a situation where new science comes to light that indicates that a duly registered pesticide is more dangerous than EPA thought it was. This is not uncommon. Right. So EPA init, you know, issued a registration in the past. Right. EPA is required to review registrations every 15 years. During that 15 year interval, new information comes to light. Right. That suggests that at some point the existing label. Right. Is no longer adequate to protect public health in the environment. Therefore, it has. The pesticide is now misbranded. Right. This is the point. Okay. Now, in order to prevail on this theory of misbranding, I think Justice Jackson needs to persuade, obviously, at least four other justices that the courts should not only carefully police EPA's safety assessments and the process by which this happens. Right. Which is what, again, the Ninth Circuit is doing right now, but should also hold EPA to deadlines with respect to the timely incorporation of any new health and safety information. So it raises the question that we were talking about earlier, about when EPA's tardiness is enough to trigger misbranding. I totally get where she's coming from, and I'm quite sympathetic to the underlying concern. But I also feel like the statute makes this hard because it gives all of this responsibility to EPA to assess safety, to review registrations, to receive new information. And just because we might not love the way EPA is doing its job, if it is at least making an effort, it seems hard for the courts to be constantly second guessing how well or how Fast. EPA is doing its job. Right. And Justice Kagan interestingly, seemed to hint at this in the argument. But again, I agree fundamentally with Justice Jackson that at some point, in the absence of EPA action, new scientific information. Right. Would seem to render a pesticide misbranded. Right. This is, though, of course, where Bayer is arguing that cancellation is the appropriate remedy, not a finding of misbranding, and where that whole series of questions about whether you could ever have the misbranding under this scenario is the case. Right. But I think it's worth pointing out here, too, that FIFRA is pretty stingy on the procedural opportunities that states and citizens groups have to petition EPA to initiate cancellation. So Clement kept saying, well, they, you know, we can just initiate cancellation. Right. And it's, you know, it's important, I think, to recognize here that unlike every other major federal environmental law, FIFRA does not have a citizen supervision. It is true that EPA has adopted regulations that allow states and citizens groups to petition for special review of a pesticide. Right. In light of new information. And, and there are, of course, opportunities under the Administrative Procedures act to petition the agency. So it's not as if there are no opportunities here. But the statute itself largely leaves the cancellation process and decision with epa, which then of course raises this question. Right. Of what to do when EPA is ignoring new information and refusing to move forward with cancellation. None of the justices really pushed on that question. Right. But it strikes me that that is part of the larger context of the case and it seemed to be part of the backdrop to Justice Jackson's points on misbranding. So, yeah, I think she's going to have a hard time getting four other justices on board with that. But I appreciate her probing questions on all of this. And, you know, we'll see, we'll see within the next month, probably.
- [28:44]
Holly From
Yeah. This, this is an interesting one. This is, this is one of the closer ones. I feel like this one has me more uncertain than other cases. I know the last two preemption cases that the court found no preemption, so that's another interesting topic.
- [28:59]
Professor William Boyd
Yeah, that was tr.
- [29:00]
Holly From
Thank you.
- [29:00]
Professor William Boyd
So, although there weren't the same kind of statutory provisions at issue there, so I think there's an easy way to resolve this case, and it could be pretty lopsided or it could be a closely divided case, really. And that's what makes it interesting to talk about.
- [29:12]
Holly From
Right. Yeah, I was wondering that, too, like where, where the justices are going to fall if they're going to rely on the express preemption or, you know if Thomas and Gorsuch are going to rely on impossibility, preemption, or if they're going to dissent based on that. So I don't know. I think this is going to be, you know, a trickier one to write. But thank you so much for explaining it to us and joining us on this podcast. I look forward to the decision and potentially discussing it with you then.
- [29:43]
Professor William Boyd
Would love to. Yeah, I really appreciate it. Holly. Thanks so much and thanks for all your great work.
- [29:47]
Holly From
I think we're going to leave it there. We'll wrap up this episode of Votes and Verdicts. As always, thank you for listening. If you have any questions about anything that we've talked about on the episode, please don't hesitate to reach out to us at your convenience. As a reminder, you can find all of our research on the Bloomberg Terminal at BI go. You can find our Litigation Policy Dashboard on the terminal at BI LawsGO. And we want to thank our producer Aditya Samani, without whom this podcast would never publish. Thank you for listening and have a great day.
- [30:30]
Professor William Boyd
This coffee shop running smooth thanks to Genius from Global Payments, Instant Transactions, Effortless inventory and synchronized operations.
- [30:41]
Wise Advertiser
Big league reliability for any business, that's genius. Wise is the smart way to manage the currencies you need around the globe. When you send money abroad using your bank, you could get hit with hidden fees and exchange rate markups. There's a better way, try Wise. Wise uses the exchange rate you'd usually find on Google, with no unwelcome surprises. Plus, most transfers happen in under 20 seconds, which means your money arrives in less time than you've been listening to me. It's simple and free to sign up when you download the Wise app. Be Smart, Get Wise T's and C's apply. Never bet against American Grit or American Energy through innovation. Venture Global is not only building some of the largest energy facilities in the world right here in the United States, but delivering American energy at a fraction of the cost in a fraction of the time. So while others are busy talking, we're busy building. That's Venture Global. That's unstoppable energy.