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Bayer ‘not surprised’ by second Roundup rebuff

For the second time in a week, the Supreme Court rejected Bayer’s attempts to shield itself from lawsuits alleging that its Roundup weedkiller is carcinogenic. Bayer said it “is not surprised” by the decision on Monday and pointed to the possibility of a change in the legal environment in its favor.

Justices refused to hear Bayer’s appeal of a state court award of $87 million award to Alva and Alberta Pilliod, of Livermore, California, in 2019, just as they declined on June 21 to hear arguments against the $25 million federal court award to Edwin Hardeman, from Santa Rosa, California, in 2019. The court rarely explains why it refuses to hear cases and it did not comment on either of the Roundup cases.

One of the world’s largest pharmaceutical and agricultural companies, Bayer, based in Germany, contends the EPA label for glyphosate, the active ingredient in Roundup, preempts state laws that require warning labels on the herbicide.

“Bayer respectfully disagrees with the Supreme Court’s decision but the company is not surprised given the court’s declination in Hardeman just one week ago,” said a company statement. “There are likely to be future cases, including Roundup cases, that present the U.S. Supreme Court with preemption questions like Pilliod and Hardeman and could also create a Circuit split and potentially change the legal environment.”

Glyphosate is the most widely used weedkiller in the world. Most of the corn, soybeans and cotton grown in the United States are varieties genetically modified to tolerate doses of the herbicide. Glyphosate has been under severe challenge since March 2015, when the UN International Agency for Research on Cancer said the chemical was “probably carcinogenic to humans.”

Bayer has won four Roundup trials in a row in the last eight months after initial setbacks, including the Hardeman award, that suggested immense financial burdens were in store. It has set aside $6.5 billion for litigation and settlement expenses to resolve thousands of pending lawsuits. “The company will only consider resolving outstanding current cases and claims if it is strategically advantageous to do so,” said Bayer last week after noting it “now has a winning record at trial.”

After the Hardeman and Pilliod cases, Bayer says its next chance before the Supreme Court could be Carson v. Monsanto, now before the U.S. appeals court in Atlanta. A federal district court judge ruled last December that Monsanto had no duty to warn of a cancer risk because of the EPA label. Bayer purchased Monsanto in 2018. The case has been clouded by allegations of bad faith litigation, with charges that Bayer backed the appeal as a way to get its preemption argument to the Supreme Court, reported the Claims Journal in April 2021.

Also on Monday, the Supreme Court declined to hear arguments by the activist ranch group R-CALF USA that the $1-a-head beef checkoff program was “an unconstitutional subsidy of private speech.”

The Bayer web page about its five-point glyphosate plan, including its statement about the Supreme Court order, is available here.

Produced with FERN, non-profit reporting on food, agriculture, and environmental health.
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