U.S. Biotechnology at Risk, Roundup’s Second Shot at the Supreme Court, and other news to ponder from Cape Law Firm

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U.S. Biotech Leadership at Risk

The National Security Commission on Emerging Biotechnology delivered a major report to Congress with a stark warning that the U.S. biotech sector is at risk of falling behind China unless the government and researchers swiftly step up investment and support. The report outlined grave risks to American security and prosperity:

Based on two years of research and consultation with private and public experts, this report comes to a sobering, even frightening, conclusion: China is quickly ascending to biotechnology dominance, having made biotechnology a strategic priority for 20 years. To remain competitive, the United States must take swift action in the next three years. Otherwise, we risk falling behind, a setback from which we may never recover.
Now for the first time in recent history, the United States finds itself competing with a rival over a new form of engineering that will create tremendous wealth, but, in the wrong hands, could be used to develop powerful weapons. Countries that win the innovation race tend to win actual wars, too.

Congress established the Commission on a bipartisan basis in 2021 with a clear mission: “to conduct a comprehensive review of emerging biotechnology’s impact on national security and provide practical recommendations to preserve American dominance in this field.” The work of the Commission is vitally important to the United States:

We are entering the age of biotechnology, a time when biology is the basis of innovation. From more productive seeds and targeted cancer therapies to the possibility of genetically enhanced soldiers, biotechnology’s reach extends far beyond the laboratory. Every strategic sector—including defense, healthcare, agriculture, energy, and manufacturing—can be advanced by biotechnology, but also breached by it, too. These are not just matters of scientific achievement; they are questions of national security, economic power, and global influence.

The report concludes that Congress should invest a minimum of $15 billion over the next 3 to 5 years to support public and private investment in the U.S. biotech sector. It also calls for working with strategic allies and installing safeguards that prevent the illicit transfer of biotech intellectual property to China.

This is a Big Deal – biotech has fueled massive growth in U.S. agriculture and many other industries. Losing this race will have far-reaching adverse impacts on America. You can read the Commission’s report here.​

Bayer’s Second Bite at the Supreme Court Apple

Bayer is taking another shot at getting the U.S. Supreme Court to overturn the company’s liability in thousands of product warning cases for the absence of cancer warnings on its Roundup-branded glyphosate herbicides. The issue being posed to the Court (for the second time) is whether or not the Federal Insectide Fungicide and Rodenticide Act (FIFRA) preempts state-law duties to provide adequate warnings on pesticides.

Bayer’s new effort to return to the Supreme Court is the result of a difference in opinion among lower courts regarding the meaning of FIFRA’s preemption provision. Late last year, the Third Circuit Court of Appeals departed from several other courts (including the Eleventh Circuit, the Ninth Circuit, and multiple state supreme courts) and held that FIFRA preempted a plaintiff’s failure-to-warn claim in Pennsylvania. This ruling created a split amongst the courts’ interpretation of FIFRA, allowing Bayer to ask the Supreme Court to resolve the question again.

If at first you don’t succeed, try, try again. You can read Bayer’s petition for certiorari here.​​​​​

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