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U.S. Supreme Court rejects Bayer’s appeal in Roundup-cancer case

Bayer had asked the Court to dismiss a $25 million jury award

The U.S. Supreme Court has denied Bayer’s bid to hear an appeal for the Roundup/cancer case Monsanto Co. vs. Hardeman. Bayer had asked the Court to dismiss a $25 million award in the case to Edwin Hardeman, a California man who blamed Roundup herbicide for giving him cancer. The appeal was part of Bayer's plan to resolve billions of dollars of claims against Roundup and its active ingredient glyphosate.

Agricultural groups including the American Farm Bureau Federation, American Soybean Association, National Corn Growers Association, National Association of Wheat Growers, and National Cotton Council issued the following statement regarding the Court’s decision:

“We are disappointed the Supreme Court has decided not to hear this case, which has significant implications for our global food supply and science-based regulation. With the conflict in Ukraine threatening food security around the world and the persistent dangers posed by climate change, too much is on the line to allow the emergence of an unscientific patchwork of state pesticide labels that would threaten grower access to tools needed for productive, sustainable farming. We will be discussing the implications of the court’s announcement and will determine what reforms may be needed to ensure a patchwork of state labels does not jeopardize grower access to these vital tools or science-based pesticide regulation.”

On May 23, the groups sent a letter signed by 54 agricultural groups to President Biden urging him to withdraw a Solicitor General’s brief submitted to the Supreme Court advising against taking up the case. Officials for the groups say they will consider the Court’s decision and what additional reforms may be needed to prevent a patchwork of state labeling requirements from disrupting commerce and undermining science-based pesticide regulation.

What Bayer Says

Bayer responded with this statement following the Court's ruling: 

Bayer respectfully disagrees with the Supreme Court’s decision to deny the Petition for Writ of Certiorari in Hardeman. The company believes that the decision undermines the ability of companies to rely on official actions taken by expert regulatory agencies, as it permits every U.S. state to require a different product label, which conflicts with the clear intent of the “uniformity clause” adopted by the U.S. Congress in FIFRA (Federal Insecticide, Fungicide, and Rodenticide Actand similar statutes. While this decision brings an end to the Hardeman case, there are likely to be future cases, including Roundup cases, that present the U.S. Supreme Court with preemption questions like Hardeman and could also create a Circuit split.

Bayer officials presented a  five-point plan in May 2021 in order to what they said would manage the litigation risk associated with potential future claims.  Bayer took a provision in the second quarter of 2021 of $4.5 billion, in addition to the $2 billion previously taken, before tax and discounting, to reasonably account for claims settlement, defense costs, judgments, and administrative expenses, said company officials. 

 The voluntary claims resolution program for the U.S. Roundup product liability litigation is a key element of the company’s five-point plan to help bring closure to the litigation in the United States, according to Bayer officials. They added the company is prepared to launch the claims resolution program, but that decision will depend on key developments in the litigation, including trials and appeals.

 The claims resolution program involves no admission of wrongdoing or liability, said Bayer officials.  They added that while the company expects any future claims program would be successful, it is prepared to defend cases in court where the expectations of claimants are unreasonable and fall outside the bounds of this program. The company has won the last four Roundup verdicts (including Shelton v. Monsanto)

Bayer officials said in the statement that it is confident that the body of science and consistently favorable views of leading regulatory bodies worldwide provide a strong foundation on which it can successfully defend Roundup in court when necessary. Most recently, as part of the European Union’s glyphosate renewal process the European Chemicals Agency’s Committee for Risk Assessment found that “Based on a wide-ranging review of scientific evidence, the committee again concludes that classifying glyphosate as a carcinogen is not justified.”

The company will only consider resolving outstanding current cases and claims if it is strategically advantageous to do so, said company officials. Bayer is also transitioning its glyphosate-based products in the U.S. residential Lawn & Garden market to new formulations that have alternative active ingredients beginning in 2023, and is on track with the commercial, regulatory, and supply elements required for this transition, company official said. Bayer has launched a website that hosts relevant scientific studies on the safety of Roundup as part of its commitment to transparency and science.

Farmers, though, will be able to continue to use Bayer’s glyphosate (the active ingredient in Roundup brands), say Bayer officials.

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