Bayer’s Strategy
Bayer recently announced plans to create a legal shield against pending lawsuits claiming it failed to warn that Monsanto’s Roundup could cause cancer. The company has set aside $16 billion to settle about 170,000 Roundup lawsuits but it says the legal battle is unsustainable and has now focused on state lawmakers for relief. Bayer is counting on the U.S. farmers’ reliance of Roundup to sway lawmakers. In particular, farmers growing corn, soybeans and cotton rely on the weedkiller as a more efficient way to control weeds and reduce tilling and soil erosion. And the product was created to work with genetically modified seeds that resist Roundup’s deadly effect.
According to Insurance Journal, some lawmakers have raised concerns that if the lawsuits persist, Bayer could pull Roundup from the U.S. market, which would force famers to rely on alternatives from China. “This is bigger than just those states, and it’s bigger than just Bayer,” Jess Christiansen, head of Bayer’s crop science and sustainability communications told Insurance Journal. “This is really about the crop protection tools that farmers need to secure production.” Although Bayer has not made public any decisions about Roundup’s future, Christiansen intimated that it will “eventually have to do something different if we can’t get some consistency and some path forward around the litigation industry.” The company has been busy campaigning and bankrolling a new coalition of agriculture groups by blasting ads on TV, newspaper, radio and billboards backing protective legislation for pesticide producers. It has targeted Missouri, once HQ of Monsanto, where about 57,000 legal claims are still pending.
If this legislation goes forward, i.e., it favors Bayer, other pesticide companies would also be protected from claims they failed to warn their products could cause cancer if their labels otherwise comply with EPA regulations.
Meanwhile, Bayer says it continues to make progress on a five-point plan it devised to manage and mitigate the risks of Roundup litigation in the U.S. “We settled most of the claims in this litigation and have appropriately provisioned for the remaining claims. Having won trials, the company will continue to try cases based on decades of science and worldwide regulatory assessments that continue to support Roundup’s safety and non-carcinogenicity,” the German multinational pharmaceutical and biotechnology company reports. And despite its cries for help, Bayer reported “strong growth last year, posting significantly higher sales and earnings...2022 was a very successful year for Bayer despite the challenging environment. We were able to deliver, even during these difficult times.”
And despite setting aside $16 billion to cover Roundup lawsuits, it reported that agricultural sales advanced by 15.6 percent to “a record 25.169 billion euros”, (more than $26,801,250,000 US dollars) with business up in all regions. “Growth was strongest at Herbicides, which saw sales rise in Latin and North America and in Europe/Middle East/Africa in particular thanks to higher prices, as supply for glyphosate-based products [e.g., Roundup] was tight.”
Glimmer of Hope for Plaintiffs
There is a glimmer of hope for plaintiffs. Reuters in February reported that a Court of Appeals rejected Bayer's argument that federal regulators' approval of Roundup shielded the company from being sued under state law for failing to warn consumers of the product's risks. It had reached the same conclusion as several other appeals courts. And if the protective legislation is revived next year, it is likely that senators concerned about limiting people’s constitutional right to a jury trial to resolve disputes will not support Bayer. Republican state Sen. Jill Carter, who voted against the legislation this year in the Senate agriculture committee, said “I support farmers, but I also think they need due process.”