On 24th June, Bayer AG announced that it would pay from « 8.8 billion to 9.6 billion dollars » in order to solve 75% of the current Roundup litigation in US courts « involving approximately 125,000 filed and unfiled claims overall ». With its shareholders unhappy about the financial situation following the Roundup legal proceedings and going as far as casting a no-confidence vote in CEO Werner Baumann in April 2019, it looks as if Bayer has decided that it will be less expensive to settle the claims than to fight them. For reference, in 2019, Bayer reported revenues of 43.5 billion dollars and a net income of 4.1 billion dollars. The company also specified in its press statement that « the agreements contain no admission of liability or wrongdoing ».

The end of a legal saga?

Roundup is a weed-killer manufactured by Monsanto, now part of Bayer, and it was first commercialised in 1974. Glyphosate is a key ingredient of the herbicide. In March 2015, the Intergovernmental Agency for Research on Cancer (IARC), which is part of the World Health Organization (WHO), classified glyphosate as ‘probably carcinogenic to humans’. On a scale of four, the classification is second only to ‘carcinogenic to humans’. The decision was made on the basis of « ‘limited’ evidence of cancer in humans (from real-world exposures that actually occurred) and ‘sufficient’evidence of cancer in experimental animals (from studies of “pure” glyphosate) ». An important consideration in the evaluation was that « glyphosate caused unusual types of tumours, which are very rarely seen in untreated animals ».

Bayer bought Monsanto in June 2018 for 66 billion dollars. Two months later, school groundskeeper Dewayne “Lee” Johnson was « the first person to win a Roundup cancer lawsuit in a jury trial », as stated by the law firm that represented him. He had claimed that the herbicide that he used daily in his work caused him to develop non-Hodgkin lymphoma. The trial was soon followed by others: Edwin Hardeman won in March 2019 and Alva and Alberta Pilliod won in May 2019. All three had used Roundup on their properties for nearly 30 years and had also developed non-Hodgkin lymphoma. Bayer appealed against the three verdicts. The Johnson appeal case was heard in June 2020 and is awaiting a decision. The settlement announcement does not concern these three cases, which the company wants to pursue. According to Bayer, « the appeals will provide legal guidance going forward ».

An additional 1.25 billion dollars has been put aside for « a separate class agreement to address potential future litigation». Still subject to court approval, the agreement would entail « the establishment of an independent Class Science Panel [which] will determine whether Roundup can cause non-Hodgkin’s lymphoma ». In the event that the Panel would not find a causation link, the company would be protected from any future litigation by class members.

The regulatory authorities: far behind?

On the regulatory side, little has changed. In December 2017, the use of glyphosate in the European Union was approved for five more years. The Glyphosate Renewal Group has already applied for its renewal post-2022. Last January, the US Environmental Protection Agency (EPA) published an interim decision on glyphosate concluding it was not a carcinogen. It also added that the findings are « consistent with the conclusions of science reviews by many other countries and other federal agencies ». Indeed, as the European Commission states, « the IARC remains, therefore, the only agency with a divergent view », including when compared to the two EU agencies involved: the European Food Safety Authority (EFSA) and the European Chemicals Agency (ECHA).

According to the IARC, the difference between its assessment and the ones of other regulatory agencies is that the latter « rely primarily on industry data from toxicological studies that are not available in the public domain. In contrast, IARC systematically assembles and evaluates all relevant evidence available in the public domain for independent scientific review ». In theory, both the Scientific Committee and Panels of the EFSA are composed of independent scientific experts and the Committee for Risk Assessment of the ECHA members are experts nominated by the Member States. However, it is worth noting that the Member State in charge of the initial risk assessment of glyphosate, which was then peer-reviewed by the EFSA, in order for the 2017 decision to be made, was Germany.

The discussion about what ‘available information’ is used to make regulatory decisions on glyphosate remains. In its 2017 answer to a citizen initiative on banning glyphosate, the European Commission stated that « scientific evidence does not support the conclusion that glyphosate has the potential to cause cancer ». However, the US juries in the three trials mentioned above and the thousands of plaintiffs seem to disagree. Meanwhile, private-use consumers and workers keep on using the substance every day.

Sources: Bayer, EPA, European Commission, EFSA, ECHA, Le Monde, The Guardian, DW, WHO, Baum Hedlund Law, Moore Law Group

Photo credits: Pexels