Supreme Court Quiet on Bayer’s Roundup Petition

15.06.2022 - Despite the expectations of many, given the broad coverage in media of all types – and the case’s mention on the docket for Jun. 13 – the US Supreme Court has remained silent on whether or not it will hear Bayer’s petition on packaging labels for Monsanto’s glyphosate-based Roundup herbicide.

Specifically, the German pharma and agrochemicals giant wants the highest US court to clarify whether federal law supersedes state law in labeling, as this has the potential to nullify a $25 million settlement awarded to a California man who charged that Roundup caused his non-Hodgkin lymphoma. 

US Solicitor General Elizabeth Prelogar, who represents the administration of president Joe Biden at the Supreme Court has urged that the justices not consider Bayer's petition. Prelogar said the administration rejects the company’s argument that the Environmental Protection Agency’s (EPA) tacit approval of glyphosate and the absence of pertinent labeling preempts the "failure to warn" claim that plaintiffs’ attorneys have leveraged under California law.

Under the last two US presidents, Barack Obama and Donald Trump, the EPA has declined to declare glyphosate a carcinogen; however, there have been recent hints that Michael Regan, who under Biden heads the EPA, could be willing to reconsider this stance.

Millions of dollars on the line

For the Leverkusen-based multinational, millions of dollars are at risk. If the Supreme Court doesn’t rule on its petition or rules against it, Bayer could see itself forced to activate its voluntary claims resolution program, for which it set aside $4.5 billion a year ago – or alternatively – win more appeals cases. To date, the group has won three appeals.

In Europe, where no Roundup cases have been filed, Bayer could take away a moral victory or at least gain positive publicity for its cause from the European Chemicals Agency’s (ECHA) recent decision to uphold its existing classification of glyphosate, in particular that it is not a carcinogen.

In its latest paper, ECHA’s Committee for Risk Assessment (RAC) again dismissed what the NGO Pesticides Action Network (PAN) said is existing “strong evidence” for classifying glyphosate as a presumed human carcinogen.

While the international Agency for Research on Cancer (IARC), which like the World Health Organization (WHO) is part of the United Nations’ network, in 2015 classified the herbicide ingrdient as “probably carcinogenic to humans,” ECHA did not even consider it a Category 2 suspected human carcinogen, PAN has criticized.

Another European pressure group, the "Ban Glyphosate" coalition, has slammed ECHA’s conclusion that “available scientific evidence” did not meet the criteria to classify glyphosate for specific target organ toxicity, or as a carcinogenic, mutagenic or reprotoxic substance. Once again, the EU body that monitors the bloc’s chemicals legislation REACH ”relied unilaterally on the studies and arguments of the industry,” the coalition said.

EU glyphosate license up for renewal this year

Glyphosate is currently in the EU spotlight, too, because the agrochemical’s license is up for renewal later this year,  and the European Food Safety Authority, EFSA, recently announced that it is unable to meet the timetable for the assessment that would be used as basis for a decision.

The 2017 license renewal squeaked by at the last minute as the then-German economics minister counter to expectations voted in favor of the move over the objections of the country’s environment minister.

EFSA said it will need an additional year to assess “the breadth of comments and studies” submitted in the course of the ongoing public consultation. Ban Glyphosate has urged the authority to use the year to “carry out a thorough evaluation of all relevant studies according to good scientific practice and in line with the applicable guidelines.”

The European Health and Environment Alliance (HEAL) meanwhile said it sees no need for additional research, pointing to eleven critical studies published ahead of the EU’s last review of the chemical’s license in 2017. Although ten of the studies showed glyphosate to be a potential carcinogen, experts advising the license renewal process deliberately ignored them, HEAL said.

In contrast to ECHA, which “didn’t take the time to analyze the new scientific evidence and the numerous comments received during the public consultation,” an alliance of 15 European environmental groups including PAN noted that EFSA is currently assessing a “multitude of studies” that report harmful effects of glyphosate.

Author: Dede Williams, Freelance Journalist