Tag Archive for: Glyphosate

Texas AG Launches Glyphosate Investigation into Major Food Companies

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Texas Attorney General Ken Paxton has initiated an investigation into glyphosate residue in foods, especially foods containing oats, his office announced June 2, 2026.

The investigation will examine whether major food companies are complying with Texas law and whether consumers have been misled by health claims on common food products.  The office has already issued civil investigative demands to pesticide and food manufacturers including Bayer and PepsiCo, the press release states.

According to the release, the percentage of Americans with detectable levels of the herbicide in their bodies has risen sharply in recent decades—from 12% in 1993 to over 70% today.  The office attributes this largely to the widespread use of glyphosate as a desiccant, or drying agent, applied to crops shortly before harvest, which it claims accounts for over 90% of glyphosate found in food.

Oats are a particular focus.  While the EPA prohibits using glyphosate as a desiccant on oats grown domestically, the office alleges that “major food companies source their oats from foreign countries where the practice is allowed,” leading to elevated exposures in children through foods such as cereals, breakfast bars, and cookies.

“In fact, studies show that certain food products marketed to children are some of the most glyphosate-contaminated food products in the United States,” the release states.  “Other products are marketed as ‘healthy’ when manufacturers know their products are contaminated with dangerously high levels of glyphosate.”

The glyphosate probe comes less than two months after Paxton’s office announced a similar investigation into activewear company Lululemon over alleged consumer deception related to PFAS in its products.

Glyphosate is one of the most widely used herbicides worldwide and the active ingredient in Roundup.  In 2015, the International Agency for Research on Cancer classified glyphosate as a probable human carcinogen, a designation that EPA has not adopted.  Under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and Federal Food, Drug, and Cosmetic Act (FFDCA), EPA sets pesticide food tolerances at levels at least 100 times below the dose that produced no adverse effects during animal testing.

Supreme Court to Weigh FIFRA Preemption in Roundup Cancer Warning Case

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The Supreme Court has agreed to hear Monsanto’s appeal of a $1.2 million jury verdict in favor of a plaintiff who claimed Roundup weedkiller caused his cancer, focusing on whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state failure-to-warn claims when EPA has not required the warning.

At the core of the dispute is FIFRA section 24(b), 7 U.S.C. 136v(b), which forbids states from imposing labeling requirements “in addition to or different from those required under” FIFRA.  Citing the Supreme Court’s 2005 decision in Bates v. Dow Agrisciences LLC, the Ninth and Eleventh Circuits have held that this language does not preempt state-law claims if the elements of the claim “parallel” FIFRA’s prohibition on misbranding.

However, more recently, in 2024, the Third Circuit created what many view as a circuit split, ruling that those courts erred by applying the “parallel requirements” test from Bates too generally.  According to the Third Circuit, EPA regulations implementing FIFRA prohibit manufacturers from adding precautionary statements to product labels without EPA approval, making such labels preempted.

Monsanto’s petition for certiorari, filed April 4, 2025, asks the Court to adopt the Third Circuit’s analysis.  “Because the jury verdict in this case requires Monsanto to include a cancer warning that EPA’s regulations did not require—and in fact affirmatively forbade it from adding—FIFRA preempts Respondent’s claim,” the petition argues.

Respondent John Durnell argues that the circuit split is both “irrelevant” and “illusory.”  In his June 9, 2025, brief, he argues that the jury verdict did not hinge on the labeling claims because Monsanto also advertised Roundup as safe in television advertisements.  He further maintains that there is no actual circuit split.

According to Durnell, there are two ways to update pesticide product labeling: by notification to EPA or by applying for amended registration.  Due to a “unique quirk” in the Third Circuit case, the court explicitly limited its analysis to the first option and “express[ed] no opinion” on whether Monsanto was required to pursue the latter, the brief states.

The Supreme Court’s decision is likely to have massive implications for numerous suits alleging that glyphosate, the active ingredient in Roundup, is carcinogenic.  EPA has repeatedly determined that glyphosate does not cause cancer, but the International Agency for Research on Cancer (IARC) has classified glyphosate as a probable human carcinogen.

The case is Monsanto Co. v. Durnell, No. 24-1068 (U.S.), petition for writ of certiorari granted January 16, 2026.

Court Reinstates Suit Alleging Roundup “Expiration” Due to Impurity

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Allegations that Monsanto’s popular Roundup-brand weedkillers degrade into a carcinogenic impurity will proceed, after the Ninth Circuit reinstated a proposed class action a district court had dismissed for failure to state a claim.

Unlike the many personal injury suits over Roundup, the plaintiffs in this case assert purely economic harms.  They allege that consumers would have paid less for concentrated Roundup products had they known that glyphosate—the active ingredient—gradually degrades into harmful levels of N-Nitrosoglyphosate (NNG) over time from exposure to nitrites in “everyday air and water,” effectively causing the products to “expire.”

The District Court for the Northern District of California dismissed the case in December 2023, finding two key allegations implausible: that NNG is substantially certain to form at levels of 1 part per million (ppm), and that 1 ppm NNG is unsafe.

The Ninth Circuit disagreed, emphasizing that plausibility does not require probability.  While no regulation sets a specific 1 ppm limit for NNG, the panel found that an expert opinion combined with EPA statements sufficed to support a plausible claim regarding NNG’s hazard.

Similarly, although the complaint failed to allege that any products purchased by the plaintiffs or other consumers contained 1 ppm NNG, the court held that a variety of factual allegations—including that “Monsanto had discovered NNG at levels above 1 ppm in relevant products in its own possession”—were enough to make the plaintiffs’ claim about the occurrence of 1 ppm NNG plausible.

However, the Ninth Circuit affirmed the dismissal of claims against Roundup distributor The Scotts Co., finding that plaintiffs failed to allege that Scotts had “unbridled control” over the challenged conduct or knowledge of the alleged expiration.

The Ninth Circuit also criticized the lower court’s reliance on an incomplete version of a key study submitted by Monsanto, which likely presented findings in a more favorable light.  “The parties and the court should be concerned about submission of and reliance upon an incomplete document,” the opinion states.

The case is Koller v. Monsanto Co., No. 24-43, opinion filed March 27, 2025.

California Glyphosate Warning Requirement Ruled Unconstitutional Compelled Speech

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California’s requirement that glyphosate-containing products display a carcinogen warning violates the First Amendment, a Ninth Circuit Court of Appeals panel ruled in a 2-1 decision on November 7, 2023. The decision in the case Nat’l Assoc. of Wheat Growers v. Bonta affirmed a district court’s summary judgment and injunction against the requirement.

Proposition 65 (known as “Prop 65”) requires that any product intentionally containing a chemical on California’s list of known carcinogens warn customers of the product’s carcinogenicity. Glyphosate, one of the most widely used herbicides and the active ingredient in the weed killer Roundup, was automatically added to the list of Prop 65 carcinogens following a 2015 determination by the International Agency for Research on Cancer that glyphosate is “probably carcinogenic to humans.” Other organizations, such as EPA, have not found that glyphosate poses a risk to humans, however.

According to the court, compelled commercial speech must pass intermediate scrutiny unless it is “purely factual and uncontroversial information,” in which case a lesser level of scrutiny applies. The panel found that this exemption was not applicable because whether glyphosate is carcinogenic is subject to scientific debate. The panel then determined that the labeling requirement did not survive intermediate scrutiny because “warn[ing] consumers of a potential ‘risk’ never confirmed by any regulatory body” does not directly advance California’s interest in preserving public health.

The warning was previously struck down by a California district court on the grounds that its phrasing would be misleading to customers, it was not purely factual and uncontroversial, and a more equivocal warning would likely not comply with Prop 65. In this case, the panel analyzed three new proposed warning messages from California’s Attorney General and another from California’s Office of Environmental Health Hazard Assessment (OEHHA) but concluded that these warnings were also not purely factual and uncontroversial.

Judge Consuelo M. Callahan wrote for the panel and was joined by Judge Patrick J. Bumatay. Writing in the dissent, Judge Mary M. Schroeder argued that, at minimum, the new OEHHA warning should be remanded to the district court. Schroeder argued that the majority applied inappropriate precedent in determining what makes a statement uncontroversial, failed to examine the actual content of the warning, and ignored the fact that EPA’s most recent determination that glyphosate is unlikely to cause cancer was vacated by the Ninth Circuit in Nat. Res. Def. Council v. U.S. Env’t Prot. Agency (2022) because it was not supported by substantial evidence.

EPA Sued Over Herbicide Registration Renewal

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On June 6, 2023, the Center for Food Safety and two other environmental groups sued EPA over the Agency’s decision to renew registrations for Enlist One and Enlist Duo, two herbicides manufactured by Corteva Agrisciences, LLC.  The case is currently pending before the U.S. District Court for the District of Columbia as Center for Food Safety v. EPA.

The lawsuit alleges that EPA failed to properly evaluate the Enlist products’ risks as required by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“ESA”) when the Agency renewed the herbicides’ registrations until 2027.  According to the plaintiffs, the herbicides cause numerous adverse environmental effects, including harm to crops growing on neighboring properties and drinking water contamination.  The plaintiffs allege that EPA understated these risks in making its decision, while overstating the herbicides’ effectiveness.  In addition, the plaintiffs argue that EPA’s decision harms the survival, growth, and reproduction of exposed plants and animals, including endangered and threatened species.  The plaintiffs ask the court to vacate EPA’s decision and to stop the sale and use of the Enlist products.

In an EPA memorandum supporting the Agency’s decision, EPA stated that it had “evaluated the benefits and risks to human health and the environment from these products’ uses, including potential risk to non-target organisms, and conducted effects determinations for federally listed endangered and threatened species.”  According to EPA, the results of its evaluations and assessments were sufficient for the Agency to conclude that granting the registration renewal met the requirements of FIFRA and ESA.  These requirements include FIFRA section 3(c)(5), which directs EPA to register a pesticide when the Agency finds that the pesticide will not generally cause unreasonable adverse effects on human health or the environment, among other criteria; ESA section 7(a)(2), which requires EPA to consult with the Fish and Wildlife Service to ensure that actions taken by EPA do not jeopardize endangered and threatened species; and ESA section 7(d), which prevents EPA from taking irreversible action during 7(a)(2) consultation that eliminates the implementation of reasonable alternatives.

Enlist Duo has previously been the subject of litigation.  In National Family Farm Coalition, et al., v. U.S. EPA, et al., 966 F.3d 893 (9th Cir., 2020), petitioners challenged EPA’s decisions to register the herbicide in 2014, 2015, and 2017 on FIFRA and ESA grounds.  The panel rejected the petitioners’ ESA claims and the majority of the petitioners’ FIFRA claims, allowing Enlist Duo registration, but agreed with the petitioners that EPA did not properly assess harm to monarch butterflies due to the herbicide’s effects on milkweed.  The panel remanded the registration decision to EPA so the Agency could assess this concern and determine whether it presented an unreasonable adverse effect under FIFRA.

According to EPA, Enlist One and Enlist Duo are registered for use in 34 states for a variety of uses on corn, cotton, and soybeans.  Both herbicides contain the active ingredient 2,4-dichlorophenoxyacetic acid choline salt.  Enlist Duo also contains the active ingredient glyphosate.

Oral Arguments in Monsanto “Roundup” Case

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On June 13, 2023, the full Eleventh Circuit heard oral arguments in the case Carson v. Monsanto Co.  The case hinges on whether a Georgia law that requires Monsanto to warn consumers about risks the company knows about or has reason to know about is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

The appellant, John D. Carson Sr., alleges that he developed cancer due to regular use of Roundup, a glyphosate-based pesticide manufactured by Monsanto. Carson claims that Monsanto “has known for decades” that Roundup use can cause cancer and failed to label their products in a way that notified consumers of this risk as required by Georgia law.

FIFRA requires pesticide manufacturers to include warning labels on products that adequately protect consumer health, but EPA has concluded that glyphosate is “not likely to be carcinogenic” to humans.  FIFRA prohibits state labelling laws that are “in addition to or different from” FIFRA requirements (7 U.S.C. § 136v(b)). Monsanto argues that this language expressly preempts the Georgia law, while Carson contends that the Georgia law merely “parallels” FIFRA’s provisions. Carson cites Bates v. Dow AgroSciences LLC, interpreting the ruling to mean that claims “equivalent to” or narrower than FIFRA provisions are not preempted (544 U.S. 431, 447 (2005)).

Also at issue in the case is the question of whether EPA’s actions with regard to Roundup constitute “force of law.” Carson asserts that EPA’s registration of Roundup does not have the force of law necessary to preempt Georgia law.  Monsanto argues that no force-of-law analysis is required because “EPA determinations define the scope of preemption as a matter of statutory construction,” but also argues that EPA’s actions constitute force of law even if such an analysis is undertaken.

During oral arguments the court posed questions to Carson’s attorney regarding whether a force-of-law analysis is necessary and questioned the attorney representing Monsanto on whether the grounds for an impossibility preemption were met. In addition, both attorneys were asked whether the appeal was “collusive” due to the type of settlement the parties reached in the case.

Carson’s suit was initially dismissed by a Georgia court, which held that FIFRA expressly preempted the Georgia law. In July 2022, it was reinstated by a three-judge Eleventh Circuit panel which ruled in favor of Carson. The panel reached the same result in a new opinion in October 2022. Last December, the full Eleventh Circuit vacated the opinion, ordering that the case be heard en banc.

Study Finds Roundup Cancer Risk Isn’t from Active Ingredient Glyphosate

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A newly released study has found that glyphosate, the active ingredient in Roundup, may not be directly responsible for the increased risk of cancer that has been associated with the weedkiller. The study was conducted by a team of federal and private sector researchers who tested glyphosate and herbicide mixtures using glyphosate on human B-lymphoblastoid TK6 cells. The researchers concluded that neither glyphosate nor its metabolite forms damaged DNA, causing cancer. Instead, they found that some other ingredient in weedkillers containing glyphosate may be responsible for the DNA damage attributed to glyphosate. This finding contradicts the 2015 World Health Organization (“WHO”) conclusion that glyphosate was “probably carcinogenic to humans” and genotoxic (meaning it damages DNA). WHO’s conclusion has led to numerous lawsuits against Bayer AG and Monsanto Co., as well as lawsuits against the Environmental Protection Agency for concluding that the herbicide would not cause cancer.

Although the study indicates that DNA damage was caused by other components of the formulations, not glyphosate, it did not rule out the possibility that exposure to glyphosate might cause cancer through other mechanisms, according to the National Toxicology Program. Bayer AG has long maintained that glyphosate does not cause cancer and is not genotoxic, and the company released a statement in response to the study, stating that “the extensive body of research on glyphosate-based herbicides and findings of leading health regulators worldwide support the conclusion that glyphosate does not cause cancer and is not genotoxic.”

EPA Revokes Interim Approval of Glyphosate

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EPA recently withdrew its 2020 Interim Approval of glyphosate, often referred to by its trade name Roundup. Interim approvals are part of a conditional registration process used by the Agency to allow new active ingredients to enter the market for an unspecified period of time while the registrant generates missing data required by the Agency for the formal registration process.  Although the Interim Approval was revoked, EPA maintains that the chemical is not carcinogenic, and the product will remain on the market as the Agency completes its periodic review as required by law. In its registration review of glyphosate, the Agency will attempt to elaborate on its evaluation of the carcinogenic potential of glyphosate. EPA will also consider whether a better explanation is needed for its findings on other aspects of the human health analysis. EPA expects to complete the review of glyphosate in 2026.

The 2020 Interim Approval was challenged in the U.S. Court of Appeals for the Ninth Circuit. Petitioners made two main allegations, first that EPA’s analysis of human health, particularly related to cancer analysis, was faulty. Second, the Agency violated the Endangered Species Act (ESA) which requires the weighing of such risks against the benefits of glyphosate and the interim risk mitigation measures.

In June 2022, the Court vacated the human health portion of the glyphosate interim review decision and held that EPA’s registration review decision under FIFRA triggered ESA obligations. It also granted EPA’s request for voluntary remand, without vacatur, of the ecological portion of the interim registration review decision but imposed a deadline for EPA to issue a new ecological potion.

While the EPA has made this withdrawal decision, it is unable to finalize the new ecological portion in a registration review decision as mandated by the Court decision. The Agency states the delay is necessary to appropriately address the issues EPA sought to remedy in the ecological potion and satisfy the ESA requirements. EPA is currently working on a consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Services. Any proposed decisions will require a 60-day comment period and an assessment of comments received. You can read EPA’s full release on its withdrawal decision here.

Update on Roundup Appeal to the U.S. Supreme Court

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Roundup has been the subject of countless lawsuits.  One critical case is Monsanto v. Hardeman, 21-241.  Bayer has petitioned the U.S. Supreme Court for relief.  Recent Court action suggests that the Supreme Court might hear the case.  In December the U.S. Supreme Court solicited the Biden administration’s opinion on whether to hear Bayer AG’s appeal of a $25 million award to Edwin Hardeman.  Hardeman asserts that decades of exposure to Roundup caused his non-Hodgkin’s lymphoma.

Bayer contends that the Ninth Circuit wrongly affirmed the district court’s decision.  The company argues that the Ninth Circuit wrongly decided that FIFRA did not preempt Hardeman’s state-law failure-to-warn claim, despite EPA’s conclusion that such a cancer warning would be false and therefore prohibited by FIFRA.  The company asserts that ruling contravenes the Supreme Court’s holding that any state labeling requirement not “genuinely equivalent” to a FIFRA labeling requirement is preempted. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 454 (2005).

Bayer further argues that the Ninth Circuit wrongly affirmed the admission of expert opinions that glyphosate can cause non-Hodgkin’s lymphoma and caused Hardeman’s cancer specifically, even though those opinions rested on “little more than subjective intuitions” in conflict with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), which requires trial courts to play “a gatekeeping role” to ensure that expert opinions are reliable, and with Federal Rule of Evidence 702, which requires expert opinions to be the product of “reliable principles and methods,” “reliably applied … to the facts of the case,” Fed. R. Evid. 702(c)-(d).

The following groups have filed amici briefs in the case: CropLife America, U.S. Chamber of Commerce, Atlantic Legal Foundation, Lawyers for Civil Justice, Product Liability Advisory Council, Inc., Retail Litigation Center, Inc., and Washington Legal Foundation. In response to the Supreme Court announcement, Bayer released a statement declaring that “[n]ow that the Supreme Court has requested input from the Solicitor General in this case, we will not entertain any further settlement discussions with plaintiff lawyers that are representing a substantial number of Roundup claims.”

It is expected that, before the current Court term ends in late June, the justices will probably say whether or not they will hear the case.

Court to Allow California to List Glyphosate as Possible Cancer Threat under Prop. 65

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In September 2015 the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) announced plans to list the pesticide glyphosate as a possible cancer threat under Proposition 65. OEHHA made the decision to list glyphosate following the International Agency for Research on Cancer March 2015 finding that glyphosate is “probably carcinogenic to humans.” Monsanto sued OEHAA in January 2016, in an effort to block the listing. Global sales of glyphosate were about $7.8 billion in 2014, as a carcinogen under Proposition 65. It is the main ingredient in Monsanto’s Roundup.

A tentative ruling by California Superior Court Judge Kristi Culver Kapetan states that the court intends to dismiss Monsanto’s lawsuit. In the lawsuit, Monsanto claimed that the listing was unconstitutional because OEHHA delegated law-making authority “to an unelected and non-transparent foreign body that is not under the oversight or control of any federal or state government entity,” and because the labor code process violated the due process clauses of the California and U.S. constitutions. In its motion to dismiss the lawsuit, California argued that IARC’s scientific determinations are “the gold standard in carcinogen identification.” The court found that Monsanto’s petition failed to state facts sufficient to constitute a cause of action.

Judge Kapetan will be issuing a formal decision soon.