Failure-to-Warn Claims After Monsanto v. Durnell: Trial and Litigation Strategy for Non-Label Warning Cases

On June 25, 2026, the Supreme Court held in Monsanto Co. v. Durnell that FIFRA expressly preempts a failure-to-warn claim that would require a cancer warning on Roundup’s EPA-approved label. Read closely, the decision is far narrower than the headlines: it preempts only claims that would change the EPA-approved label, and it leaves untouched claims built on the channels a manufacturer actually controls — advertising, point-of-sale and retailer communications, direct notices, oral sales communications, professional-applicator outreach, and standalone websites. This session builds the front end of the case: defining the claim so it stays outside § 136v(b); pleading the non-label theory from the first filing with channel-specific allegations that disclaim label-change relief; and targeting discovery and expert proof to the defendant’s communication capacity, including feasible non-label warnings and audience reach.

With the claim defined and pleaded, this session turns to proof and protection. Faculty will show how to select plaintiffs and prove exposure, reliance, and causation without the label, including the use of heeding presumptions; how to draft jury instructions, verdict forms, and limiting instructions that isolate non-label liability; and how to preserve the issue through post-trial motions and appeal so the case falls outside of Durnell’s scope. It also covers salvaging pending cases at every posture, the leading defense arguments — broad “labeling,” content-versus-channel, and implied/obstacle preemption — and how to answer them, and how the same strategy extends to other federally regulated labels, including FDA-approved drugs. Attendees will leave with a concrete framework to apply in active cases.