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Supreme Court refuses Bayer’s Roundup appeal, but another pending

The Supreme Court disposed of one Roundup appeal by Bayer on Tuesday but it will not be the final word in the company’s attempts to shield itself from lawsuits alleging its weedkiller causes cancer. Another Bayer appeal was pending before the Supreme Court and the company suggested a case being heard by an appeals court in Atlanta could be the third.

“There are likely to be future cases, including Roundup cases, that present the U.S. Supreme Court with preemption questions like Hardeman,” said the global pharmaceutical and agriculture giant, referring to its attempt to overturn a $25 million award to Edwin Hardeman. He was diagnosed with cancer after using Roundup on his San Francisco Bay area property for years.

Justices refused without comment to hear the Hardeman case.

Bayer, the world’s largest seed and ag chemical company, says glyphosate, the active ingredient in Roundup is safe to use and argues the EPA-approved label for the herbicide, which doesn’t mention cancer, preempts any claims that it should have warned purchasers of the risk. As part of a routine review, the EPA said in a 2020 interim decision “glyphosate is unlikely to be a human carcinogen.”

“Bayer continues to stand fully behind its Roundup products, which are a valuable tool in efficient agricultural production around the world,” said the company following the Supreme Court order. Glyphosate is the most widely used herbicide in the world.

In its statement, Bayer said the Supreme Court was expected to rule soon on its request for a review of the $87 million award to Alva and Alberta Pilliod, a California couple, in 2019. A state court jury awarded more than $2 billion to the Pilliods. A judge reduced it to $87 million. The couple, who both developed cancer, used Roundup on their properties in the 1970s. They argued that Roundup was defective and its manufacturer should have warned users. The manufacturer said the couple had many medical issues and that scientists almost unanimously agreed glyphosate was safe so no warning was required.

In the other case cited by Bayer, a U.S. district judge agreed in 2020 with Bayer’s preemption argument that the manufacturer of Roundup was not obliged to warn of a cancer risk. The plaintiff, John Carson, has appealed. The case has been clouded by allegations that Bayer supported the appeal as a way to get its preemption argument to the Supreme Court. Bayer said its settlement with Carson was “an appropriate path” for its argument of federal preemption, reported the Claims Journal in April 2021.

Bayer has set aside $6.5 billion for litigation and settlement expenses for thousands of pending lawsuits if it failed to win a favorable Supreme Court ruling. “The company is fully prepared to launch the claims resolution program but that decision will depend on key developments in the litigation, including trials and appeals,” it said on Tuesday.

Glyphosate, best-known under the trade name Roundup, has been under severe challenge since March 2015, when the UN International Agency for Research on Cancer said the chemical is “probably carcinogenic to humans.”

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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