More than 50 US ag groups have sent a letter to President Joe Biden calling on him to withdraw opposition to Bayer's request for the Supreme Court to review and reverse a glyphosate cancer verdict. They warn that the administration's view on the legal dispute threatens US agricultural production by allowing states to mislabel pesticides.

The letter echoes Bayer's view that the state-based cancer claims at the heart of the case are pre-empted by federal pesticide law and criticises Mr Biden for abandoning the Trump administration's support of the company's position.

"At a crucial time when American farmers are striving to feed a world threatened by food shortages and insecurity, the likes of which we have not seen in decades, this reversal of policy greatly risks undermining the ability of US agricultural producers to help meet global food needs," according to the letter.

"With so much at stake, it is vital that we have durable, predictable, science-based policy on this matter that does not fluctuate between administrations," the ag groups say. "We strongly urge you to withdraw the brief establishing this new policy, fully considering the implications it holds for global food security, environmental sustainability, and the future of science-based regulation."

Pre-emption issue

Led by the American Farm Bureau Federation, American Soybean Association, National Cotton Council, National Corn Growers Association, the ag coalition is targeting a brief filed on May 10th by US Solicitor General Elizabeth Prelogar that rejected Bayer's view that federal pesticide law pre-empts the state-based cancer claims and called on the Supreme Court to deny the company's request for review.

Bayer is keen for the Court to intervene and reverse a decision by the US Court of Appeals for the Ninth Circuit to uphold a federal jury verdict that ordered the company pay California resident Edwin Hardeman some $25 million.

Mr Hardeman sued Monsanto after developing non-Hodgkin's lymphoma (NHL), alleging that years of exposure to glyphosate from the mid-1980s until 2012 had caused his cancer while relying on the International Agency for Research on Cancer's 2015 classification of glyphosate as a "probable human carcinogen". A federal jury sided with Mr Hardeman, concluding that glyphosate had played a "substantial factor" in causing him to develop NHL and determined that Monsanto was negligent in failing to warn him and other consumers of the cancer risks from its popular herbicide.

Bayer disputes the IARC classification and notes that the US EPA and other regulators across the globe have found that glyphosate does not pose a cancer risk. The company argues that Mr Hardeman's state-based, failure-to-warn claims are pre-empted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and that adding a cancer warning to glyphosate would be misleading and illegal.

"The Ninth Circuit's errors mean that 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 said in its petition. "That is not, and should not be, the law."

Opposition and stakes

The stakes are high for Bayer, which has failed with appeals of the Hardeman case as well as two state jury verdicts that ordered the company to pay damages of $86 million and $20.4 million, respectively.

The company has committed some $11 billion to settle around 96,000 cases, but as of the middle of last year, still faced nearly 30,000 additional lawsuits and is keen to find a way to fend off new litigation. It has since set aside a further $4.5 billion against potential payments. A favourable ruling by the Supreme Court on the pre-emption issue "would effectively end potential future litigation", Bayer group chief executive officer Werner Baumann told investors in July 2021.

The stakes are also high for food and ag interests. US growers spray some 280 million lb (127 million kg) of the herbicide on a wide array of food crops, including maize, soybeans, canola, wheat, and sugar beet.

Reversal and ramifications

In their letter to Mr Biden, the ag groups warn of far-reaching ramifications if the administration's legal position is persuasive.

"The Solicitor General's brief adopts a position that permits states to mislabel glyphosate—or any pesticide—with cancer warnings despite overwhelming scientific evidence that it does not pose a cancer risk," the ag interests say.

They contend that the "dangerous reversal in position" violates FIFRA and opens the door to "an impractical of state labelling requirements" that will hurt US farmers and ag exporters.

"We are concerned this monumental change in the federal government's policy will not just threaten science-based regulation, but it risks undercutting food production and important environmental practices at a time when we cannot afford to hinder either." The letter concludes: "We strongly urge your administration to withdraw the brief and to consult with the US Department of Agriculture regarding the implications of this decision for food production, environmental sustainability, and science-based regulation."

Posted 27 May 2022 by Jonathan Pegg, US Correspondent, IHS Markit

This article was published by S&P Global Commodity Insights and not by S&P Global Ratings, which is a separately managed division of S&P Global.