Carey Gillam is the author of this month’s BookClub pick: The Monsanto Papers. To read an excerpt from the book or to receive your own copy, please click here.
After losing three out of three trials over claims its Roundup weed killer causes cancer, Monsanto owner Bayer AG is contemplating pulling the popular herbicide from the residential market as it struggles to cement a strategy to limit ongoing litigation.
Bayer, based in Germany, continues to insist that Roundup and other herbicides made by Monsanto with a chemical called glyphosate, don’t cause cancer. The company states that “the weight of scientific evidence and the conclusions of all expert regulators worldwide continue to support the safety of glyphosate-based herbicides.”
But a wealth of evidence presented at three U.S. trials in 2018 and 2019, including numerous scientific studies and internal Monsanto documents discussing efforts to deceive consumers about Roundup risks, has bogged Bayer down in ongoing litigation. The revelations of corporate deception and safety concerns have also fueled proposed bans and/or restrictions on glyphosate-based products around the world.
U.S. District Judge Vince Chhabria, who has overseen much of the Roundup litigation, said in a recent order that the trials have provided “a good deal of damning evidence against Monsanto—evidence which suggested that Monsanto never seemed to care whether its product harms people.”
Reductions in the use of glyphosate weed killers have been called for in several countries, including Mexico, where a ban on glyphosate begins in 2024. Several European countries have moved to limit use, including France, where the government said it would give financial incentives to farmers to encourage them to halt their use of glyphosate weed killers.
In the United States, New York City recently banned the use of glyphosate and other pesticides on city property, and other cities, schools and neighborhoods around the country have implemented reductions or bans.
Popular for decades
Glyphosate is the most widely used weed killer in history and has been popular for decades with farmers for controlling weeds in their fields as well as with homeowners, groundskeepers and users battling weeds or unwanted vegetation.
The building consumer and government opposition to widespread glyphosate use comes after the International Agency for Research on Cancer in 2015 declared that years of scientific research showed glyphosate to be a probable human carcinogen.
Lawsuits brought by people alleging they developed cancer due to exposure to Monsanto’s herbicides now involve more than 100,000 plaintiffs, with many more people working with law firms to bring lawsuits.
Bayer, which bought Monsanto in 2018, said in June of 2020 that it would pay close to $11 billion to try to settle the existing litigation. The company then spent much of 2020 and early 2021 trying to gain court approval for an additional $2 billion plan to head off future litigation through a class action settlement.
The company’s efforts have been faltering, however, and in May Bayer said it would implement a “package of measures” designed “to help the company achieve a level of risk mitigation” with regard to the sweeping Roundup litigation.
Eyeing a market exit
A key move eyed by Bayer is an exit from the U.S. residential market for glyphosate herbicides. The company said it would “engage with partners to discuss the future” of these products. The company said it will not consider removing Roundup or other herbicides from agricultural use, however, or other uses by professional applicators.
Among other things the company said it would do is create a new website where consumers could find scientific studies “relevant to Roundup’s safety.” Though the company still balks at any label that warns of cancer risk, Bayer said it would ask the Environmental Protection Agency to approve new labeling language for Roundup products to reference the website.
Part of the strategy to head off future lawsuits is to guide a Roundup case all the way to the U.S. Supreme Court where Bayer hopes it can get the high court to agree with Bayer’s position that federal law preempts claims that Monsanto failed to warn users of cancer risk. Bayer maintains that it “has strong legal arguments on its side” and is hoping for a favorable decision by the U.S. Supreme Court by mid-2022.
To that end, Bayer has sought to appeal each of its trial losses.
In the first trial, that of groundskeeper Dewayne Johnson, a unanimous jury awarded Johnson $289 million. A judge later lowered the award to $20.5 million. Bayer exhausted appeal efforts and finally paid Johnson in the fall of 2020.
In the second trial, a jury awarded plaintiff Edwin Hardeman $80 million, which a judge found excessive and lowered to $25 million. In May, a federal appeals court rejected Bayer’s preemption argument.
Bayer is also appealing a May 2019 trial loss in which a California jury ordered Monsanto to pay just over $2 billion in punitive and compensatory damages to a married couple, Alva and Alberta Pilliod, who both developed non-Hodgkin lymphoma they say were caused by their many years of using Roundup products. The award was cut to $87 million.
The appeal is pending with the 1st Appellate District in California.