The US Supreme Court met last week to consider whether to hear Bayer Crop Science division's bid to dismiss claims that it failed to warn customers of cancer risks from legacy business Monsanto's glyphosate-based Roundup herbicide. Despite expectations, Bayer reports that no decision has yet been made and that it expects a decision "at a later conference".

The company 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's verdict that ordered the company pay California resident Edwin Hardeman some $25 million. The company claims pre-emption by federal law of state rules.

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 Roundup.

Bayer disputes the IARC classification and notes that the US EPA and other international regulators 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.

Opposing demands

The Biden administration has called on the Supreme Court to deny Bayer's request to reverse the federal jury verdict. That followed US Solicitor General Elizabeth Prelogar's conclusion that federal pesticide law did not pre-empt the cancer claims and rejected Bayer's concern that the federal judge overseeing the case allowed the plaintiffs to present dubious evidence on the cancer risks from Roundup. More than 50 US ag groups have since petitioned the President to withdraw opposition to Bayer's request.

How the Court acts will help determine whether thousands of similar cases go forward.

Bayer 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 company has recently won a third case in the US against claims that its product had caused a plaintiff's cancer.

Posted 21 June 2022 by Robert Birkett, News Reporter, Agribusiness

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.