Glyphosate is under unprecedented fire, and whether the herbicide stands or falls, the implications of an overarching legal battle are seismic. As activists, litigants and special interest groups queue up for restrictions and compensation, the clamor reveals a glaring certainty for agriculture: Science and perception need not match in order for reality to change.
When a California jury awarded $289 million to a cancer-riddled Lee Johnson in August 2018, and pointed blame for his suffering at glyphosate and Monsanto, the legal doors swung wide on a bull rush of related cases waiting in the wings—8,700-plus claims with the tally rapidly increasing. As litigation continues regarding Johnson vs. Monsanto, the agriculture industry is squarely in the midst of an unprecedented chemical storm, and while perpetually downwind, one group waits to bear the brunt: U.S. farmers.
After an eight-week trial, a San Francisco Superior Court jury ordered Monsanto to fork over $39 million in compensatory damages and $250 million in punitive damages. (On Oct. 22, Judge Suzanne Bolanos denied Monsanto’s request for a new trial, but cut the $250 million punitive award to $39 million. If Johnson agrees to the lesser sum, Monsanto’s request for a new trial will be turned down. Johnson has until Dec. 7 to issue a response.) Johnson, a father of three and school groundskeeper who frequently applied glyphosate, was a highly sympathetic figure. According to his lawyers and physician testimony, Johnson, 46, was a dead man walking, and wouldn’t recover from the effects of non-Hodgkin lymphoma (NHL).
In addition to fingering glyphosate as the causal agent of Johnson’s NHL, the jury determined Monsanto had “acted with malice or oppression,” in hiding the alleged dangers of the chemical from the public. (Monsanto was purchased by Bayer in a $63-billion acquisition in June 2018.) The world’s most common herbicide, often considered as one of the most benchmark technological advances in agricultural history, was deemed a carcinogen, and the decision echoed around the globe.
The Johnson jury hung its hat on the International Agency for Research on Cancer (IARC) 2015 report that found glyphosate was a probable carcinogen. Voluminous reports to the contrary, from the Environmental Protection Agency (EPA), National Cancer Institute (NCI), European Union (EU), European Food Safety Authority (EFSA) and many others, were negated by a highly controversial outlier.
“Look back at 40 years of safe glyphosate use and there are no lawsuits like this until the IARC report, which was based on no testing, no lab work, just opinion that glyphosate is probably a carcinogen. That’s manipulation and cherry-picking of data,” says Scott Partridge, senior vice president of Bayer. “IARC has rendered opinions on 1,200 substances and in all but one, found cancer risks. According to IARC, hot beverages, overtime, red meat, alcohol and sunscreen all cause cancer.”
Marketed as Roundup beginning in 1974, the Monsanto product became a chemical titan in the mid-90s with the advent of glyphosate-tolerant crops. As of 2018, it’s difficult to overstate the ubiquity of Roundup and its generic copycats.
The list of organizations giving glyphosate a clean bill of health is expansive. Registered in 130-plus countries for application on roughly 100 crops, glyphosate is the most commonly used herbicide on the planet. Therein lies the rub: The agriculture industry is facing the realization that science and safety may not hold sway. On the ladder of public acceptance, minority science and perception are making a big play for the top rung.
Regarding glyphosate litigation, Johnson was merely the first through the legal door. Thousands of claimants are lining up and Johnson’s case has triggered a wave of television and internet advertisement from attorneys seeking more individuals with glyphosate claims. Bayer has acknowledged 8,700 lawsuits from plaintiffs claiming illness due to glyphosate-based product exposure.
Partridge is emphatic and says Bayer will not settle a single glyphosate-related case. “This was only one case and the first step in long process,” he says. “There are multiple levels of appeal and they exist to correct incorrect decisions. As we move further through the legal system, this case is going to be corrected.”
Roundup again will be front-and-center on Feb. 5, 2019, when Ronald Peterson and Jeff Hall v. Monsanto begins. According to the filing, Peterson is a “lifelong” Illinois farmer and used Roundup from 1990 to 2015. He was diagnosed with NHL in 2015. However, the Illinois case could be leapfrogged by Pilliod v. Monsanto in California. (An elderly couple is citing terminal illness due to glyphosate exposure to request expedited court scheduling.)
Thomas Redick, an attorney with the Global Environmental Ethics Counsel (GEEC), says the Johnson jury decision doesn’t bode well for the agriculture chemical industry. “It’s not alarmist to say glyphosate is in trouble. It’s been subject to a double-blind epidemiological study that was massive in scope and shown to have no association with non-Hodgkin in any statistical significance. How many studies do you want?”
“Minority theories don’t carry the day in a scientific conference, but they can do well in court. The reality is that courts can carry the ball well into the end zone and award billions of dollars without seriously validated science,” Redick adds. “That’s the unfortunate situation that glyphosate appears to be in.”
Even prior to the Johnson litigation, glyphosate was under a barrage of attempted restriction. After wrangling over the IARC report, the EU passed a five-year clearance for glyphosate in November 2017—but significantly, nine of the 28 member states voted for a ban. French President Emmanuel Macron, elected in May 2017, openly campaigned for a glyphosate ban, and doubled-down after the EU vote, vowing to implement a ban in France by 2021. On Aug. 7, 2018, a federal judge in Brazil banned the use of products containing glyphosate, but the ruling was overturned less than a month later. Glyphosate bans of various sorts exist at the city, municipality, school district or restricted use levels in Argentina, Belgium, Canada, Columbia, Denmark, El Salvador, England, Germany, Greece, Italy, the Netherlands, New Zealand, Portugal, Scotland, Spain, and Sweden. The creeping restrictions suggest the potential for total countrywide bans in the near future, and the inevitable clampdown on crops containing glyphosate residue.
Chris Novak, CEO of CropLife America, argues the U.S. agriculture industry must avoid going down the EU road: “We don’t want a politicized regulatory system like we see in Europe.”
“In 2019, we have to tell the story of the value of pesticides for consumers and farmers related to health, environmental quality and food safety,” Novak continues. “Clearly, we must find ways to tell the story of the safety and efficacy of our products.”
Harrison Pittman, director of the National Agricultural Law Center, says the Johnson decision may embolden anti-glyphosate activism. “Days after the California glyphosate ruling, the Environmental Working Group (EWG) suddenly issued a report about Cheerios and glyphosate levels (Breakfast with a Dose of Roundup). The general public doesn’t receive this type of report well, regardless of the science. When consumer perception gets poisoned, you’ve lost that consumer. For example, look at vaccines: If someone believes a vaccine causes an illness, that person isn’t going to give up that belief and the ship has sailed.”
Pittman contends the glyphosate controversy will cross-pollinate, evidenced by the EWG report. “Look at the speed of the report right on the heels of the Johnson case. The activist groups have agendas and sentiment on their side, and they are going to take advantage. One image or incident can define everything and that’s the undeniable reality of the environment we are in.”
Seth Hampton, an attorney with Quattlebaum, Grooms & Tull in Little Rock, Ark., echoes Pittman and says perception can hold sway over science. “The agriculture industry is forced into a position of crossing t’s and dotting i’s, all in an attempt at greater accountability and transparency. But the glyphosate litigation is a first-of-its-kind situation and it’s very difficult to predict what is going to happen.”
Feed the Cat
As perception of glyphosate and other agricultural chemicals takes a pounding in the public arena, what is the effect on the jury pool? “Chemical company goodwill is arguably negative in the public eye,” Redick explains. “This is a ‘feed the cat’ situation where if you feed one cat there will be five more at your window in the morning. People are lining up to get claims in and the statute of limitations is not nearly in play. This is off to the races.”
The jury dynamic in the Johnson case is not specific to the crop protection industry, Novak asserts: “There is often a strong, emotional bias on the part of jurors that favors a sympathetic plaintiff over a large corporation. Farmers need to understand, however, that the cost of litigation is often folded back into the price of products that they purchase. That money comes from somewhere—whether that ‘somewhere’ is increased product costs or decreased investment in new innovation and research. The farm community must understand that the California judgment has an effect on them, and to think otherwise means you’re not seeing all the pieces of the puzzle.”
Although the Johnson case sets no legal precedent, other juries are ripe for influence, notes attorney Todd Janzen, Janzen Agricultural Law, in Indianapolis, Ind. “We’ve heard about coming glyphosate cases for years, but never have seen anything like this. Judges rule on legal questions and juries decide factual questions. Whether a product caused an injury is a question for the jury. We’re not in the room during these trials, but we know juries can be heavily influenced by the reputation and perceived conduct of the wrongdoer even prior to injury.”
Company names are on trial as much as science or particular claims, Pittman asserts, and he points to three 2018 examples: Monsanto/glyphosate, Dow/chlorpyrifos, and Smithfield Foods/hogs. “Essentially three mega decisions in a row and all three have the potential to turn part of agriculture upside down. There is no precedent for this snowballing effect, and I’d say this timeline could be one of the most consequential three to four weeks for U.S. agriculture since the 1940s.”
“The opposition to production agriculture has taken various forms and emerged for quite some time, but now we’re really seeing the fruit and I think the trouble is only just beginning.”
Adding to the succession of litigation, Bader Farms v. Monsanto (the first dicamba-related case filed in 2016) was granted a jury trial in May 2018, and will begin in 2019, once again giving the public a front-row seat to agriculture chemical controversy. (In addition, class action suits involving dicamba are approaching court dates.)
It’s Coming Home
Even the most sanguine predictions can’t discount the reality of heavy litigation on the horizon. Where does the controversy over glyphosate and additional chemicals leave U.S. farmers? The protracted wait for chemical registrations likely just got longer, according to Scott Senseman, president of the Weed Science Society of America (WSSA), as well as professor and department head of Plant Sciences at the University of Tennessee. “We desperately need new materials to combat herbicide resistance, particularly in waterhemp and pigweed. Registrations already take 10 years-plus and hundreds of millions of dollars, and they’re becoming rarer all the time. It’s pretty plain: Statistically we’re looking at fewer materials being registered over time.”
“In the end, all of this comes home to farmers,” Senseman continues. “The far-reaching impact hits them with more problems in the field and eventually more expense.”
“It’s no exaggeration to say in just five to 10 years, both glyphosate and dicamba could both be off the table for growers,” Redick warns. “But remember, that’s just the start. Activists will go after more chemicals. Long term, growers are facing a reality of farming with fewer and fewer chemistries.”
“Pay attention,” Pittman adds. “If the California glyphosate case triggers a major trend of litigation, there will be a sea change for the grain industry like nothing we’ve seen before in agriculture.”
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