The US Supreme Court has asked president Joe Biden’s administration for its views on whether to hear a bid by German pharmaceutical and chemical giant Bayer to dismiss claims by customers who claim its Roundup weedkiller causes cancer, as the company potentially faces billions of dollars in damages, Insurance Journal wrote on 13 December.
In August 2021, Bayer had filed a petition with the Supreme Court to reverse a lower court decision that upheld US$25M in damages awarded to California resident Edwin Hardeman, a Roundup user who blamed his cancer on Bayer’s glyphosate-based weedkillers, the report said.
US solicitor general Elizabeth Prelogar is due to file a brief expressing the administration’s views in the coming months, according to the report.
In a statement Bayer said that it was encouraged by the court’s announcement, which often indicated the justices were interested in hearing a case, Insurance Journal wrote.
The US government “has consistently found that glyphosate-based herbicides can be used safely and are not carcinogenic, and has stated that a cancer warning would be false and misleading and misbrand the product,” Bayer’s statement said.
Bayer has lost three appeals against verdicts that sided with Roundup users, awarding them tens of millions of dollars each, according to the report.
The German company had asked the Supreme Court to review the verdict in Hardeman’s case, which was upheld by the San Francisco-based 9th US Circuit Court of Appeals in May, Insurance Journal wrote.
Hardeman had regularly used Roundup for 26 years at his home in northern California before being diagnosed with a form of non-Hodgkin’s lymphoma.
Facing more than 25,000 related unsettled claims, Bayer says that the cancer claims over Roundup and its active ingredient glyphosate go against sound science and product clearance from the US Environmental Protection Agency (EPA). The EPA has upheld guidance that glyphosate is not carcinogenic and is not a risk to public health when used as indicated on the label.
Bayer has said it should not penalised for marketing a product deemed safe by the EPA and on which the agency would not allow a cancer warning to be printed.
The lawsuits against Bayer have said the company should have warned customers of the alleged cancer risk, according to the report, while Bayer wants the Supreme Court to find that the EPA label approval under the Federal Insecticide, Fungicide and Rodenticide Act pre-empts the “failure to warn” claims brought under state law.
Bayer has faced Roundup-related lawsuits since acquiring the brand as part of its US$63bn purchase of agricultural seeds and pesticides company Monsanto in 2018.
In June 2020, the company had struck a settlement deal with plaintiffs but had failed to win court approval for a separate agreement on how to handle future cases, Insurance Journal wrote.
Bayer took an additional litigation provision of US$4.5bn in July – on top of US$11.6bn it had previously set aside for settlements and litigation over the matter – in case of an unfavourable ruling by the Supreme Court or in case the justices declined to consider its petition, according to the report.
Meanwhile, Bayer is planning to replace glyphosate in weedkillers for the US residential marker for non-professional gardeners with other active ingredients, while continuing to sell the herbicide to farmers, who rely on it heavily.
As of late October 2021, Bayer had reached settlements in about 98,000 Roundup cases out of a total of around 125,000 cases, the report said.
A California jury found in December 2021 that Roundup did not cause a woman’s non-Hodgkin’s lymphoma, Insurance Journal wrote.
