Bayer, through its indirect subsidiary Monsanto, has filed two hold petitions with the U.S. Supreme Court in two cases involving its Roundup pesticide, includong one from Florida.
The company filed the petitions April 18 in Johnson v. Monsanto from Oregon and Salas v. Monsanto from Florida, saying both cover the same federal preemption question as the prior Durnell v. Monsanto petition about whether state-based claims that rely on failure-to-warn theories are both expressly and impliedly preempted by federal law.
Parties file hold petitions when, as here, the same question of law cuts across multiple cases. The petitions ask the Supreme Court to grant the petition in Durnell and hold the Johnson and Salas cases pending final resolution of that case.
“These hold petitions underscore the importance of our petition in Durnell and the need for U.S. Supreme Court review and resolution of the circuit split on the federal preemption question, as this issue is common to all three cases and thousands more in the Roundup litigation,” the company said in statement. “Only the U.S. Supreme Court can provide definitive guidance to state and federal courts that have reached different conclusions on this central issue.”
Monsanto initially prevailed in the Johnson trial with a unanimous jury verdict in June 2022 in the Jackson County Circuit Court of Oregon. The plaintiff appealed the verdict. In July 2024, the Oregon Court of Appeals granted the plaintiff’s appeal, reversing the jury’s verdict and remanding the case to the lower court for a new trial. Monsanto petitioned the Oregon Supreme Court on the federal preemption issue, and it declined to hear the case, making it ripe for U.S. Supreme Court review following an extension granted to the Company.
The Salas case originally was filed in state court – the Eleventh Judicial Circuit Court of Florida – and was then removed to the federal court by Monsanto. It was worked up in the MDL in California and then was remanded back to the federal court in Florida for further proceedings. A settlement was reached between the parties in November 2024, and a condition of that settlement agreement was entering judgment on the state-based failure-to-warn claim against Monsanto.
The company then appealed to the 11th Circuit Court of Appeals and filed a motion for summary affirmance, which the court granted. This ruling applied the previous ruling from the 11th Circuit in Carson to the Salas case. Because of that, the company says the case is ripe for U.S. Supreme Court review.
Bayer is asking the Supreme Court to determine if federal law should invalidate thousands of lawsuits that claim the company has a duty to warn about health risks of the product. It says federal law prevents the company from adding a warning label to Roundup products warning customers of alleged cancer risks associated with the active ingredient glyphosate.
Bayer acquired Monsanto in 2018, and the company has been hit with countless lawsuit it calls unfounded. Bayer disputes the cancer claims but has set aside $16 billion to settle cases. It has said the future of American agriculture is at stake because of the Roundup litigation claims.
Earlier this month, Bayer filed a petition with the U.S. Supreme Court to review the $1.25 million Durnell ruling after the Missouri Supreme Court refused to overturn the verdict.
In that petition, filed April 4, Bayer asked the court to limit claims that Roundup causes cancer. The company says consumers should not be allowed to sue for the company not warning Roundup increases the risk of cancer because the U.S. Environmental Protection Agency hasn’t declared such a risk.
The company previously made a similar effort with the Supreme Court, but it was rejected in 2022. But since then, the Third Circuit Court of Appeals agreed with Bayer when it rejected a man’s claim that Bayer subsidiary Monsanto violated state law by not putting a cancer warning on the product.
If the Supreme Court takes up the case, it likely would make filing such lawsuit more difficult. Bayer filed the petition related to a verdict in state court. John Durnell was awarded the $1.25 million in 2023 by a St. Louis Circuit Court.
Bayer has paid about $10 billion to settle Roundup claims, and it has about $6 billion more set aside for additional cases.
In its Supreme Court petition, Bayer says a split among federal circuit courts in the Roundup personal injury litigation about whether federal law preempts state-based failure-to-warn claims, warrants review.
A Supreme Court ruling also could affect the outcome of thousands of pending cases across the country regarding the question of state-based failure-to-warn claims. Bayer has said it might have to stop selling glyphosate-based products such as Roundup to farmers and other professional users.
Bayer says the Third Circuit was correct when it unanimously said the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempted the plaintiff’s failure-to-warn claim, because a jury verdict in his favor would impose labeling requirements different from what EPA requires in administering FIFRA. FIFRA’s express preemption clause declares that a state “shall not impose or continue in effect any requirements for labeling ... in addition to or different from those required’ under federal law.”
In the Missouri case, Bayer says the jury’s verdict “rests solely on the claim that Missouri law requires the company to warn that Roundup is carcinogenic, the precise warning that EPA rejects.”
It says this claim is plainly in conflict with the product label EPA approved under federal law, based on the agency’s rigorous scientific assessment, and cannot be changed without agency approval. Thus, it is expressly preempted.
The 9th and 11th Circuits and Missouri’s intermediate appellate court have reached different conclusions on the preemption question, and the petition argues that state and federal courts require guidance that only the U.S. Supreme Court can provide.
Bayer’s Supreme Court petition also says there is preemption language similar to FIFRA in statutes regulating medical devices, poultry products, meat and motor vehicles that make resolution of this preemption split even more important, as courts often are guided by prior decisions interpreting similar language in other statutes.
Bayer also says the state-based failure-to-warn claim in the Missouri case also should be dismissed under implied preemption because it is impossible for the company to comply with both federal and state requirements for the same reasons already noted.
In October 2023, the St. Louis Circuit Court jury found Bayer failed to warn of the product’s risk and awarded $1.25 million to Durnell, but it rejected all other claims and declined to award punitive damages. The company appealed the verdict in August 2024 and the Missouri Court of Appeals, Eastern District upheld the verdict in February 2025.
Bayer promptly filed a writ to transfer the case to the Missouri Supreme Court and it declined review April 1, making it ripe for U.S. Supreme Court review and the petition filed just three days later.