Monsanto, acquired last year by Bayer AG, is the subject of literally thousands of lawsuits alleging that its flagship product, Roundup, causes cancer.
The first crop of those lawsuits went to trial this year (it’s fun to look back at the end of the year!), and have not gone well for the agrochemical giant; courts have awarded settlements in the tens of millions of dollars against Monsanto. But Monsanto this week asked for something unusual, a Hail Mary that, if successful, might negate all of those pending lawsuits.
Roundup is the brand name for a broad-spectrum herbicide called glyphosate. Roundup is hugely successful, used everywhere from backyard gardens to thousand-acre monocrop operations, but it’s been repeatedly linked to cancer, most importantly in a World Health Organization 2015 classification.
Monsanto has vigorously argued that the link is inconclusive, and that’s sort of true, though much of the research saying it’s not a carcinogen was funded by Monsanto itself. Monsanto and Bayer have engaged in widespread attempts to defame and cause doubt about the World Health Organization’s cancer research arm, which made that 2015 classification.
In any case, one of the first lawsuits to go to court was the case of Edwin Hardeman, who sued Monsanto alleging that his non-Hodgkin’s lymphoma was caused by glyphosate, and that the company deliberately misled the public about the carcinogenic effects of the product. The initial hearing found a jury award Hardeman $80 million; it was reduced a few months later by a trial judge to $25 million.
Monsanto—we’re referring to the company that way because glyphosate is so deeply connected to Monsanto, though the actual entity in court is now Monsanto’s owner, Bayer—has vowed to appeal all decisions that go against it. This week, the company submitted a filing in court, arguing that the case never should have been brought to trial in the first place.
The crux of Monsanto’s argument is that the Environmental Protection Agency has repeatedly stated that glyphosate is not carcinogenic or a risk to human health. Therefore, had Monsanto included a label about glyphosate potentially causing cancer, it would have been in violation of the EPA, and thus Monsanto cannot be held responsible for following the law.
The Trump administration has announced its support for Monsanto’s court challenge. Last week, the EPA and the Department of Justice filed an amicus brief, stating that the court should overturn the ruling. An amicus brief is a document filed by a third party that’s not actually involved in the case itself; a judge can decide to use it or not. The government’s amicus brief in this case states, as reported by Reuters, that according to California law, a warning was not required on Roundup’s packaging. It further states that it would be against the law for Monsanto to have placed a warning label on the packaging, because that would contradict the EPA’s ruling of glyphosate as “not carcinogenic.” The US government has repeatedly sided with agribusiness in court cases during the Trump administration, allowing for reduced regulation in pork processing and refusing to ban chlorpyrifos, a pesticide that even the EPA (under a previous administration) has said is unsafe.
If this challenge is successful, it will create a precedent that will be extremely difficult to overcome; if Monsanto was legally unable to warn customers about the carcinogenic nature of glyphosate, how can they be held responsible for that? This of course does not address the basic issue of whether glyphosate can in fact cause cancer, nor does it address the decades-long campaign to discredit opposing research, but none of that might matter. Bloomberg Environment writers suggest that a successful filing could lead to a drastically reduced settlement. That would be welcome news for Bayer, which has seen the price of its shares drop dramatically due to the lawsuits.