US backs Bayer–Monsanto with glyphosate decision

The US solicitor general, who represents the federal government before the US Supreme Court, has weighed in on the side of Bayer subsidiary Monsanto in the company’s efforts to protect itself from a barrage of lawsuits claiming that its glyphosate-based weedkiller Roundup causes cancer.

John Sauer, who has served as US solicitor general since April, filed a brief earlier this month supporting Monsanto’s petition for a ruling on whether federal law pre-empts claims under state laws that the company failed to warn users about Roundup’s cancer risk.

At issue is a lawsuit in which a Missouri jury last year ordered Monsanto to compensate the plaintiff $1.25 million (£725,000) because labels on Roundup products did not provide adequate warning about potential cancer risks associated with the active ingredient, glyphosate.

The World Health Organisation’s International Agency for Research on Cancer has classified glyphosate as a probable human carcinogen. But in 2020 the US Environmental Protection Agency’s (EPA) risk assessment found that glyphosate is unlikely to cause cancer in humans under normal use.

Monsanto argues that the US Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) pre-empts state law failure-to-warn claims.

In his new brief, Sauer argues that the US ‘has re-examined the arguments’ and has returned to its previous position regarding the scope of the FIFRA pre-emption. ‘EPA’s approval of Roundup labels without a cancer warning, combined with an EPA regulation that prohibits [Monsanto] from adding such a warning without agency approval, pre-empts [the] failure-to-warn claim,’ he wrote.

Overall, Sauer states that FIFRA pre-empts any statutory or common-law rule that would impose a labelling requirement that diverges from those set out in FIFRA.

Bayer has welcomed Sauer’s support. ‘A positive ruling on the central, cross-cutting pre-emption issue could help bring the company closer to closure of tens of thousands of Roundup cases, which are overwhelmingly based on claims grounded in failure-to-warn theories,’ the company stated. The Supreme Court has not officially agreed to hear the case, but the request is pending.

Environmental organisations have decried the brief. ‘It’s outrageous – though sadly predictable – that the Trump administration has chosen to side with Bayer over the cancer patients who trusted that Roundup was safe,’ stated Ken Cook, president of the non-profit Environmental Working Group in Washington, DC.

Safety study retracted

Meanwhile, a pivotal and decades-old safety study concluding that Roundup does not pose a health risk to humans was retracted in late November.

The retraction was requested by Martin van den Berg, a co-editor-in-chief of the journal Regulatory Toxicology and Pharmacology where the article was originally published in 2000. It cited ‘several critical issues that are considered to undermine the academic integrity of this article and its conclusions,’ including ‘the apparent contributions of Monsanto employees as co-writers to this article’ without acknowledging them as coauthors as well as the study’s sole reliance on unpublished studies from Monsanto.

As of mid-October, Bayer estimated that about 65,000 lawsuits over Roundup’s alleged cancer risk were pending in the US.