Bayer Done with Roundup Settlements

Santa Clara, CAIt all boils down to federal regulators. Bayer has asked for a petition for a writ of certiorari with the U.S. Supreme Court and the Supreme Court has asked the Solicitor General to weigh in. A favorable decision for Bayer means it could be exempt from Monsanto’s Roundup lawsuits based on federal regulators' approval of its glyphosate-based herbicide.

Encouraged by the Supreme Court ‘s interest, Bayer said “it won’t take part in any further settlement discussions with lawyers who represent a substantial number of plaintiffs,” and “believes there are strong legal arguments to support Supreme Court review and reversal.” If the Supreme Court grants Bayer a writ of certiorari (the primary means to petition the court for review is to ask it to grant certiorari-- a request that the Supreme Court order a lower court to send up the record of the case for review) it could curtail the ability of future plaintiffs to pursue their claims.

Monsanto v. Hardeman

Bayer has asked the Supreme Court to overturn a decision by the Ninth Circuit Court of Appeals in one of the early bellwether trials: $25 million was awarded to Edwin Hardeman who claimed decades of exposure to Roundup caused his non-Hodgkin’s lymphoma. The California man used Roundup from the 1980s to 2012; he was diagnosed with non-Hodgkins lymphoma in 2015. Hardeman sued Monsanto for failure to warn of Roundup’s carcinogenic risk. Jurors agreed that Roundup caused his cancer and awarded him more than $80 million, later reduced by the trial judge to $25 million. (Bayer also argued that the trial judge improperly allowed expert testimony that Roundup causes cancer. The company said the testimony was speculative.) A federal appeals court upheld the award.

According to Public Justice, Hardeman’s lawyers argued that, Under the Supreme Court’s 2005 ruling, “where, as here, a plaintiff proves that a herbicide is dangerous to human health, the manufacturer can be found in violation of both state and federal law.”
Bayer argued that, under the appeals court ruling, “a company can be severely punished for marketing a product without a cancer warning when the near-universal scientific and regulatory consensus is that the product does not cause cancer, and the responsible federal agency has forbidden such a warning.” Bayer says the EPA sent a letter in 2019 that told manufacturers of glyphosate, the active ingredient in Roundup, that no request to add a cancer warning would be approved because it would be false and misleading.

Hardeman’s lawyers argued that the EPA’s letter doesn’t address the “unique risks” posed when glyphosate is combined with other ingredients. They said the EPA has approved warnings on glyphosate-based formulations like Roundup and has never reached any conclusion as to whether those formulations cause cancer.

Bayer argues that federal approval of Roundup’s label meant Hardeman’s suit, and tens of thousands of similar claims, should be tossed. Bloomberg reported (Dec 2021, subscription required) that a Supreme Court ruling in its favor would “effectively and largely end” U.S. Roundup litigation, while at the same time setting aside $4.5 billion in case the court rejected the appeal—as told by Bayer last July. The case is Monsanto v. Hardeman.

FIFRA Pesticide Law

Bayer is counting on Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to defend the company from liability. FIFRA’s job is to provide “for federal regulation of pesticide distribution, sale, and use. All pesticides distributed or sold in the United States must be registered (licensed) by EPA. Before EPA may register a pesticide under FIFRA, the applicant must show, among other things, that using the pesticide according to specifications "will not generally cause unreasonable adverse effects on the environment.'' It also says that states may not impose packaging or labeling requirements that are “in addition to or different from” those under the federal law.

A few Bayer factoids:

To date, Bayer has pledged more than $16 billion to fight and settle Roundup litigation.
Bayer announced in July it will pull the current version of the weedkiller off the U.S. consumer market in 2023.
Bayer and its Monsanto subsidiary faced more than 120,000 Roundup lawsuits brought by individuals throughout the U.S. with similar claims that they were not adequately warned about the cancer risk posed by glyphosate-based herbicides.
Bayer still maintains Roundup doesn’t cause cancer.