Monsanto Should Have Written the Warning

Everyone is arguing the two least interesting questions in the whole case.

Does Roundup cause cancer? The Court didn’t say. I won’t either. I don’t have the data, and neither, honestly, does most of the internet weighing in. Who’s really behind the wave of lawsuits? I’ll get there, but only in the cheap seats, and only once.

Monsanto v. Durnell came down 7–2. Kavanaugh wrote it. The holding is narrow on its face: FIFRA, the federal pesticide statute, expressly preempts state failure-to-warn labeling claims. No ruling on cancer. Design-defect, manufacturing, negligent-testing claims all survive. So the headline “Monsanto wins” is doing a lot of work it didn’t earn.

What interests me is everything the fight is standing in front of.

Here is the detail almost nobody is discussing. According to the dissent, Monsanto could have added a cancer warning to the label *itself*, years ago, through a routine “minor modification” notification, no prior EPA sign-off required. A Bayer subsidiary has actually done this. So the whole failure-to-warn theory, the one that generated the litigation billions, could have been strangled at step one by the company simply choosing to warn.

Would it have sold less Roundup? My read: barely. People who buy glyphosate to kill weeds are not, on the whole, deterred by a paragraph of small type. They already assume the stuff is not a smoothie ingredient.

So run the counterfactual. Warn early. Kill the theory. Take the money that instead went to a decade of lawyers and pour it into the next herbicide. The herbicide Bayer needs regardless, because glyphosate resistance is coming whether or not a jury ever rules. The lesson there isn’t legal. It’s strategic. Warn early, and fund your own replacement, because the molecule has an expiration date the courtroom has nothing to do with.

A jury cannot invent chemistry. It can only move money after the fact, years late, with enormous variance. If the real complaint is that we don’t trust the EPA’s approval, the clean move is to change the law, not to route product-safety policy through tort one verdict at a time.

And there’s a quieter effect. Weakening agency approval as a shield doesn’t punish bigness. It entrenches it. Only the largest players can afford to test everything against open-ended, unbounded liability. The startup with a better, safer molecule can’t buy that insurance. So the instinct to make Bayer bleed mostly guarantees that the only companies left standing are the Bayers. This is the same regulatory machinery that keeps producing outcomes nobody voted for: the rule written to restrain the incumbent becomes the moat that protects it.

Glyphosate targets a metabolic pathway that human cells don’t have, but our gut bacteria do. So there’s a plausible story where the effect that touches the most people isn’t a tumor in a single plaintiff but a diffuse, low-grade disruption across millions of guts, the kind no tort could ever measure because there’s no discrete injury to point at.

I don’t know the magnitude. Honestly, nobody does. But it fits a pattern I keep noticing in food and health: the variable that ends up mattering is rarely the one on trial. We litigate the scary word and ignore the boring, distributed one. At an absolute minimum, people ought to be able to know whether it’s in their food, and anyone spraying it should take precautions no label is going to require.

7–2. The two dissenters were Gorsuch and Jackson. Gorsuch silently joined Jackson’s dissent and wrote nothing separate. Meanwhile Thomas concurred with the result, he voted for Monsanto, but wrote separately to argue that FIFRA itself is unconstitutional.

Sit with that. There are two completely opposite “anti-administrative” instincts on this Court, and this case pried them apart.

Thomas’s is constitutional demolition: the whole delegation offends the structure, the EPA shouldn’t be doing this at all. And yet he shields the company the agency he distrusts had approved. Gorsuch’s is textualist anti-deference: read the words. FIFRA says registration is only “prima facie evidence” of compliance and is “in no event” a defense to misbranding. Evidence, not a command. If the approval is merely rebuttable evidence, it can’t also be the automatic, permanent immunity the majority turned it into.

Two skeptics of the administrative state, landing on opposite sides. One shields the company from a regulator he thinks shouldn’t exist. The other refuses to let a regulator’s sign-off harden into a shield the statute never granted. The tidy political model, count the appointing presidents, tells you nothing here. The real fault line is about who wields power and where the text draws the line, and those two questions don’t sort by party at all. I kind of wish Gorsuch had written it up himself; the silent join left the best argument in the case underlined by someone else’s pen.

Against my own rule, and purely in the spirit of full speculative abandon: if you’re the sort of person already certain that the aliens landed and nobody told us, then we may as well throw a little random fuel on the Roundup fire.

The rumors, stated neutrally: that litigation-finance investors bankrolled the suits for a cut of the verdicts; that foreign interests are happy to see American agriculture hobbled; that a faction mostly wants the administrative state taken down a peg and found a convenient vehicle. I have no idea if any of it is true, and I’d bet most of it isn’t. But notice the tell, none of these rumors are about whether Roundup is safe. Which is the point. The case became a screen. Everyone projected the fight they already wanted to have onto it.

The majority itself analogized to statutes covering food, cosmetics, over-the-counter drugs, meat, poultry, eggs. The principle, that an agency’s individual product approval counts as a federal requirement that blocks state failure-to-warn claims, is portable. If you care what’s allowed to be hidden from a food or supplement label, this pesticide case is your dry run.

Lawsuits did a second job nobody gives them credit for. Paying injured people was the visible one. The real one was information: the threat of discovery and a verdict is what forced companies to put data on the table they’d otherwise have sat on. Remove the lawsuit, and you remove the thing that pulled the data out.

So what’s left holding a company accountable? Really just one thing, the EPA’s approval. And that approval is a single snapshot, built from the data the company chose to submit. It’s the thinnest safeguard available, and Durnell just made it the only one.

The obvious response is to attack it: strip the shield, force Congress to write something better. I’d be careful there. When you blow up a law, you don’t get to write the replacement, the company with the biggest lobbying budget does. So you don’t get a better system. You get a better-funded version of the same shield.

The move I’d make instead is to build the missing option before that fight arrives. Not immunity, not endless lawsuits. A third thing: a way to measure what a product actually does once it’s out in the world, where honestly disclosing the risks (and how sure you are of them) is what earns a company legal protection. Build that, and the next time Congress is cornered, there’s a real alternative already on the table instead of a forced choice between shielding the company and suing it.

Because accountability doesn’t vanish when the lawsuit goes away. It just moves to wherever someone is still measuring. Right now, once the EPA signs off, no one is. That empty space is the whole opportunity.

None of which is a doctrine. It’s just the oldest human courtesy: tell people the risk, and let them decide. It would have saved everyone a decade. A measurement layer would only make it normal.