The MAHA moms are understandably outraged by last week’s Executive Order purporting to promote Bayer Monsanto’s popular weed killer Round-Up through the Defense Production Act of 1950. Otherwise known as glyphosate, the herbicide does untold damage to wildlife, habitat, and people, according to Health and Human Services Secretary Robert F. Kennedy, Jr.  More credible authorities, including the International Agency for Research on Cancer, have determined that glyphosate is a carcinogen. The E.O., which “confers all immunity provided for in section 707” of the Defense Production Act to Bayer Monsanto, seems to betray the “Make American Healthy Again” adherents who voted for Trump with expectations of tighter controls on glyphosate and other pesticides and herbicides.

And it does betray them. But the E.O., like past invocations of the Defense Production Act, amounts to a public relations campaign, with little legal force.

We have seen this before. On April 28, 2020, as the first Trump Administration floundered and local public health departments contemplated closing down meatpacking plants in response to early COVID-19 infection clusters, an Executive Order delegated authority to USDA to  “take all appropriate action under [section 101 of the of the DPA] to ensure that meat and poultry processors continue operations.” In coverage reminiscent of today’s, the media attributed more authority to the E.O. than it deserved, with headlines such as “Trump signs executive order to keep meat processing plants open.”

The Executive Order did no such thing. Nevertheless, it worked. Even though, as many of us pointed out, the Defense Production Act gives the federal government zero authority to override local public health protections, which are securely ensconced within the Tenth Amendment’s reservation of “police powers” to the states, the Administration stuck to its guns. It sent out then (and current) USDA Under Secretary for Food Safety Mindy Brashears to pressure local health officials on behalf of the meatpacking companies, and the “cascading” threat from local health departments subsided. A later congressional investigation found that “infections and deaths among workers for five of the largest meatpacking companies were significantly higher than previously estimated, with over 59,000 workers for the five companies under the investigation having been infected with the coronavirus and at least 269 dying.”

According to that investigation, lawyers at Tyson drafted the April 2020 E.O. that invoked the Defense Production Act to keep meatpackers open. Will a future investigation find that lawyers at Bayer Monsanto drafted last week’s E.O.?

Seems like a good bet. The day before the E.O., Bayer Monsanto proposed a $7.25 billion settlement fund “designed to resolve current and future Roundup™ claims alleging Non-Hodgkin lymphoma (NHL) injuries through a long-term claims program.” The company’s proposal eschews “any admission of liability or wrongdoing,” and cites EPA in maintaining that glyphosate products “can be used safely and are not carcinogenic.” The E.O. would seem to undercut future lawsuits seeking compensation from Bayer Monsanto insofar as it “confers … immunity” to the company.

But the immunity in the E.O. is very narrow. It protects from liability “resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant” to the Defense Production Act. The Act, however, only gives the president authority to “require performance” of government orders or contracts over private ones, and “to allocate materials, services, and facilities … as he shall deem necessary or appropriate to promote the national defense.” So far, the federal government has not put in orders to create a national stockpile of glyphosate, nor has Secretary Rollins sent in a USDA team to Luling, Louisiana for a Soviet-style takeover of the means of production.

When could immunity apply? If the federal government (through Congress) were to create a national glyphosate stockpile, and the President then ordered Bayer Monsanto, pursuant to the Defense Production Act, to ignore its other customers until it had met the federal government’s stockpile needs, then the company would have a good argument that immunity under the Act should bar breach of contract claims from the customers it ignored. Thankfully, for now, the national glyphosate reserve remains a hypothetical.

So why did Bayer Monsanto’s lawyers draft the E.O.? Oops, I mean, why might they have? The E.O. could strengthen the company’s argument that federal rules, i.e. the Environmental Protection Agency’s regulation of glyphosate, should preempt some of the claims against the company. After all, this stuff is critical to national defense! But the argument is a stretch. Courts assessing preemption will still focus on what Congress has said in laws like Federal Insecticide, Fungicide, and Rodenticide Act, and how EPA has implemented them. They will not lightly set aside longstanding presumptions against displacing state tort law in areas of traditional state authority.

Nevertheless, the E.O. sends a powerful message that the Administration supports glyphosate. Investors can safely put their money in Bayer Monsanto. Farmers can safely rely on the company’s products. The Administration will not follow up, for example, on concerns about glyphosate expressed in its May 2025 “MAHA report.” RFK, Jr. has gotten the message. He insists the E.O. protecting glyphosate will really “protect American families.” Only time will tell if his supporters believe him, or if instead, they look to other leaders who might not sell them out.