In an on going legal battle over Roundup, Bayer has once again been hit by a blow by Judge Vince Chhabria of the U.S. District Court for the Northern District of California. The judge rejected Bayer’s $2 billion class action proposal, which would have provided compensation in return for placing limits on potential future litigation.
After the rejection, Bayer announced a series of actions it plans to implement following the denial of their motion. Although Bayer points to studies that show Roundup and glyphosate are safe for human use, they also state they will be looking into Roundup’s future in the residential market. This will not affect the professional or agriculture market.
Bayer points out that just last week the U.S. Environmental Protection Agency filed a brief with the U.S. Court of Appeals for the 9th Circuit in which it affirmed once again that glyphosate ‘poses no human-health risks of concern.’ Thus, these actions are being taken exclusively to manage litigation risk and not because of any safety concerns.
The five-point plan includes:
- Creation and promotion of a new website with scientific studies relevant to Roundup’s safety, and a request that EPA approves corresponding language on Roundup labels. This will include a reference link to the label for all Roundup products that will take consumers and professional users to a website the company will maintain and promote containing scientific studies relevant to the safety concerns at issue in the litigation. Bayer intends to create and maintain this website and promote it to all customer audiences regardless of whether EPA ultimately approves the label addition. Importantly, this website will not make any claims or draw conclusions about the safety of Roundup; instead, in the interest of transparency and accessibility, it would provide a one-stop resource for consumers and professional users to a significant body of scientific study to help them make their own decisions about their use of the products.
- Planning for the future. While the Company will remain in the residential lawn and garden market, it will immediately engage with partners to discuss the future of glyphosate-based products in the U.S. residential market, as the overwhelming majority of claimants in the Roundup litigation allege that they used Roundup Lawn and Garden products. None of these discussions will affect the availability of glyphosate-based products in markets for professional and agricultural users.
- Future claims settlements and independent science advisory panel. The company will explore alternative solutions aimed at addressing potential future Roundup claims. Any such programs would help bring resolution to potential future claims brought by individuals. The company also will explore the creation of an independent scientific advisory panel comprised of external scientific experts to review scientific information regarding the safety of Roundup. The results would be released publicly and added to the website above, actions that reflect both the company’s confidence in the safety of Roundup and its commitment to scientific rigor and transparency.
- Ongoing Efforts to Settle Existing Claims Will Be Reassessed. The company will continue to be open to settlement discussions, as long as claimants are qualified and resolutions can be reached on appropriate terms. This effort to resolve claims amicably is a step the company is taking in good faith to bring an end to the litigation and liability risk, but it will regularly reassess whether this approach continues to serve the company’s best interests. In June 2020, Bayer announced a comprehensive resolution to all pending cases and claims and most recently reported that the vast majority of these, approximately 96,000 total claims, have been finalized, are in the final stages of resolution or involve claims that are not eligible.
- Continuing Appeals. While not new actions, the appeals of the Hardeman and Pilliod cases will continue through the legal process and can also help manage future liability risk. The Carson case, now before the 11th Circuit Court of Appeals, also raises the same federal preemption issue — whether state-based failure-to-warn claims can stand if they are different from or conflict with federal law — that is central to this litigation.
This new plan is a way for Bayer to move forward and address any risks from potential future Roundup litigation.