Judges in a US Supreme Court are wrestling this week with whether federal law pre-empts them – and juries – from weighing claims from tens of thousands of cancer patients that chemical giant Monsanto failed to warn them about alleged cancer risks from weed killer Roundup, reports The Washington Post.
Billions of dollars are at stake, as is the future of a chemical that environmentalists are adamant is toxic but which the US’ largest farm group says is so important that ending its use would threaten America’s food supply.
The judges appear to be leaning towards restricting the lawsuits, but they have asked tough questions of both sides and the outcome remains unclear.
At the heart of the case is glyphosate, the active ingredient in Roundup and other name brands used as a herbicide since the 1970s. Roundup is one of the most widely used weed killers in the world.
The Environmental Protection Agency has found repeatedly over decades that glyphosate does not cause cancer in humans, but in 2015, a prominent cancer research group associated with the World Health Organisation and United Nations, determined that glyphosate was “probably carcinogenic to humans”.
The finding led some countries to ban the herbicide and touched off a flood of lawsuits against Monsanto. The company, which is now owned by German conglomerate Bayer, denies Roundup causes cancer. More than 100 000 lawsuits have been filed in American courts, and Bayer has spent about $11bn on settlements to date.
The case before the Supreme Court involves one of those lawsuits. John Durnell sued Monsanto in Missouri state court in 2019, alleging exposure to Roundup had caused his non-Hodgkin lymphoma, a form of blood cancer. Durnell used Roundup to spray weeds in parks near his home for two decades before his diagnosis.
Durnell’s suit claimed Monsanto had a duty to warn consumers that Roundup was a cancer risk.
“Monsanto has known for decades that Roundup can cause cancer,” Durnell’s attorneys wrote in a Supreme Court filing. “But the company has refused to make its product safer or to inform consumers that they should exercise caution when using it. Instead, Monsanto has marketed Roundup as safe to spray in a T-shirt and shorts.”
Durnell points to findings that Monsanto relied on fraudulent studies to obtain Roundup’s approval. The leaders of the laboratory that performed the study were later convicted of fraud.
The fraud became public in 1976, but Monsanto did not disclose it to customers subsequently.
A Missouri jury ruled for Durnell, awarding him $1.25m in damages. An appeals court rejected Monsanto’s appeal, before the company eventually asked the Supreme Court to take up the case.
Such lawsuits have prompted Monsanto to remove Roundup from the consumer market, but it is still available to farmers. Monsanto says allowing additional suits to go forward could prompt further action.
“The continuing overhang of these lawsuits threatens Monsanto’s ability to continue to supply glyphosate to farmers who need it to remain world leaders in food production,” Monsanto wrote in its petition to the Supreme Court.
That assessment was backed by the American Farm Bureau Federation in a friend-of-the-court brief, which said the demise of Roundup could force its members to rely on herbicides with even greater health risks.
“To remove glyphosate from the market would pose an immediate, devastating risk to America’s food supply,” the bureau wrote. “Farmers depend on this safe herbicide to support high-yield food and fibre production, season after season. Glyphosate is used on roughly 300m acres of US farmland.”
Some farm workers’ groups, cancer prevention organisations and environmentalists say Roundup poses substantial risks and should be labelled as causing cancer.
“Cancer is an epidemic, afflicting more than one in three Americans within their lifetimes,” the Centre for Food Safety and other groups wrote in a friend-of-the-court brief. “The court should not afford Monsanto immunity for its products’ risks … and deny Americans their right to know the risks of an inherently dangerous product.”
Paul Clement, an attorney for Monsanto, told the judges that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) that regulates the sale and marketing of pesticides pre-empts the state-court judgment.
Under FIFRA, a company must submit studies and safety data that show a herbicide carries no “unreasonable risk” to human health or the environment to get approval from the EPA to sell the product.
The EPA also signs off on a label, which is barred from featuring false and misleading statements. The manufacturer must seek EPA approval for any substantive changes to the label.
While the law recognises that states retain their ability to regulate pesticide sale or use, provided its rules don’t conflict with EPA or FIFRA regulations, it bars those states from requiring any additional labelling, not mandated under FIFRA.
Clement argued in court the EPA has consistently found Roundup does not cause cancer, so it was not required to warn consumers of an alleged cancer risk and could not be held liable for not doing so.
“A Missouri jury has told us that a cancer label that is not required to be put on the label is required to be put on the label,” Clement said.
That argument seemed to gain traction with some of the judges, who questioned how companies could comply with different labelling requirements from the federal government and states. One of the goals of FIFRA was to establish a single labelling requirement.
One suggested that lawsuits play an important role in uncovering health risks from herbicides, so restricting them could harm public health.
See more from MedicalBrief archives:
Another legal win for Monsanto in Roundup cancer claim battles
Judge sceptical about Bayer settlement of Roundup claims