For those who depend on glyphosate for farming, the decision by Bayer to pay over $10bn to settle the litigation proceedings brought by people in the US will not help win public opinion in the EU. These people claim to have contracted cancer from having used Roundup and the move would appear to sound the death knell for the active in Europe. Let us hope not.

It is important to point out that there are two separate strands operating in this process.

The first hinges around claims and awards made in three cases by the courts in California.

The second is the recently announced settlement which relates to the thousands of subsequent cases that have been filed against glyphosate in the US.

Indeed, from what we know, these cases have been filed specifically against Roundup, while there are many other suppliers of glyphosate on the market.

Three court cases

The initial three cases in California were made by people who claimed to have contracted non-Hodgkin lymphoma arising from their frequent use of Roundup.

These cases were tried by lay juries who found in favour of the plaintiffs and initially awarded more than $2.4bn in penalties against the company, just for these three cases.

These awards were subsequently reduced by the judges and Bayer is continuing to pursue appeals in these three cases which are excluded from the settlement.

The initial three cases in California were made by people who claimed to have contracted non-Hodgkin lymphoma arising from their frequent use of Roundup

These judgments set the backdrop to the level of risk that the company might be exposed to if it continued to fight each and every case.

So, the decision to offer a multi-billion-dollar settlement is seen as the least worst option compared to the risk and negative publicity associated with being in court.

A statement from the company reads:

  • Firstly, the Roundup settlement is the right action at the right time for Bayer to bring a long period of uncertainty to an end. It is the most efficient and financially responsible response.
  • Secondly, it resolves most current claims and puts in place a clear mechanism to manage risks of potential future litigation. It is financially reasonable when viewed against the significant financial risks of continued, multi-year litigation and the related impacts to our reputation and to our business.
  • Thirdly, it will help return the conversation about the safety and utility of glyphosate-based herbicides to the scientific and regulatory arena and to the full body of science.
  • Liability

    While this award is being made in good faith, Bayer is not accepting liability for the cancers and the company still claims to have science on its side.

    This, it says, is why leading expert health regulators worldwide, who consider the full body of science, have consistently concluded that glyphosate-based herbicides are safe when used as directed and that glyphosate is not carcinogenic.

    This is supported by statements like the one issued by the Canadian regulator in 2019 which can be seen at here.

    The deal was done with a number of big US law firms representing over 125,000 cases claiming to have contracted cancer from the frequent use of Roundup.

    The settlement with the law firms aims to conclude their current claim cases, plus an agreement not to take on further litigation cases.

    The deal was done with a number of big US law firms representing over 125,000 cases claiming to have contracted cancer from the frequent use of Roundup

    Bayer remains strongly committed to finding a resolution with the parties involved which simultaneously addresses both the current litigation on reasonable terms and a viable solution to manage and resolve potential future litigation.

    The appeal cases

    The three cases that did go to court, which Bayer lost, are being appealed and are excluded from the agreement.

    Bayer was, and is, appealing these three cases because they claim the jury verdicts and awards do not reflect the scientific evidence or the law.

    The company feels that it has a strong case given that the US government filed a brief in support of its position.

    The State of California, where these cases were tried, was told recently that a federal court ruling prevents it from insisting on a cancer warning on the Roundup label “because there is no credible evidence to support it at this time”.

    Bayer want the three appeals to go forward because their outcomes will provide legal guidance for any potential future litigation.

    However, the appeals process could take years to conclude, leaving space and time for further litigation and costs. This drove the decision to offer the award settlement to all those cases that are pending.

    The EU decision

    The fate of glyphosate in the EU remains in the balance and it is likely that the decisions from the US courts will come too late to influence the outcome here.

    The big question is, will it be science, law or political opinion that will be allowed to make the decision this time?

    In this regard, Bayer is now investing heavily to try to move the framework of this decision away from court rooms and back to scientific evidence.