Roundup Settlement Scuttled

By Todd Neeley and Emily Unglesbee, DTN Staff Reporters

Editor's Note: This is an update to DTN's previous story on this federal court ruling, posted here: https://www.dtnpf.com/….

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LINCOLN, Neb. (DTN) -- A federal judge on Wednesday rejected Bayer's $2 billion Roundup settlement on the grounds it would not adequately address the concerns of families who may later be diagnosed with non-Hodgkin's lymphoma and sent the company back to the drawing board.

"If a settlement that reasonably protects the interests of Roundup users who have not been diagnosed with NHL (non-Hodgkin's lymphoma) can be reached, that agreement must be presented on a new motion for preliminary approval," Judge Vince Chhabria said in his order handed down in the U.S. District Court for the Northern District of California.

At the beginning of February, Bayer announced it had reached a $2 billion settlement resolving outstanding and future legal issues related to the herbicide glyphosate (found in Roundup). The proposed compensation would only have been considered for those who develop non-Hodgkins lymphoma within four years of settlement.

Attorneys representing cancer victims objected to the proposed settlement earlier this month and, ultimately, Judge Chhabria agreed with them. In his newly issued opinion, Chhabria said Bayer's proposed settlement was "clearly unreasonable" with "glaring flaws" that "vastly overstated" the potential benefits to future cancer victims from Roundup, particularly those who have not yet been diagnosed.

The judge's ruling won't immediately affect the availability of Roundup products within the agricultural industry, but it dealt a blow to shareholder confidence in Bayer, whose shares fell nearly 5% in response to the news.

Opponents of glyphosate use greeted the ruling with celebration.

"We applaud the court for resoundingly rejecting this proposed settlement, which would leave many Roundup-using victims of non-Hodgkin lymphoma high and dry in order to limit Bayer/Monsanto's liability for their carcinogenic herbicide," said Bill Freese, science director at the Center for Food Safety said in a statement.

BAYER RESPONDS

Bayer released a statement on May 27, seeking to reassure the agricultural industry of the continued availability of Roundup, as well as shore up confidence among shareholders.

"[W]e have legal and commercial options that together will achieve a similar result in mitigating future litigation risk, and we will pursue them as quickly as possible," the statement read.

The statement outlined those five options:

--Bayer will revisit and "discuss the future" of its lawn and garden Roundup products targeted toward residential consumers, which account for the majority of claimants suing the company over health concerns. "None of these discussions will affect the availability of glyphosate-based products in markets for professional and agricultural users," the company stressed.

--The company will remain open to settling existing claims against Roundup. Bayer noted that it is nearing resolution on the majority of the claims it is facing, stating that approximately 96,000 claims "have been finalized, are in the final stages of resolution or involve claims that are not eligible."

--Bayer will "explore alternative solutions" to address future claims against Roundup. The company also still plans to create a scientific advisory panel "comprised of external scientific experts to review scientific information regarding the safety of Roundup," and publish their results.

--The company will continue to appeal past jury judgements against it and is pursuing a federal case that could have a major impact on the Bayer's future liability risk. "The Carson case, now before the 11th Circuit Court of Appeals, also raises the same federal preemption issue -- whether state-based failure-to-warn claims can stand if they are different from or conflict with federal law -- that is central to this litigation," the statement noted.

--Bayer will create a new website to compile scientific studies on Roundup's safety profile and ask EPA to put links to that website on the labels of their Roundup products.

BACKGROUND

These developments hearken back to June 2020, when Bayer first reached a potential settlement of between $8.8 billion and $9.6 billion to resolve current and future litigation against its glyphosate and dicamba herbicides.

Bayer acquired Roundup brands as part of its $63 billion purchase of Monsanto in 2017. Bayer continues to maintain that glyphosate is safe, regularly pointing out that the EPA and many other countries' regulatory agencies support glyphosate's continued use.

But during the past few years, Bayer has lost a number of lawsuits from plaintiffs who alleged their use and exposure to Roundup caused non-Hodgkin's lymphoma and other cancers.

EPA reapproved an interim registration of glyphosate in January 2020, but the agency has now asked for a federal court's permission to reexamine that decision, which is facing lawsuits from farmworker and environmental groups. In particular, EPA wants to revisit glyphosate's registration in light of its own biological evaluation of glyphosate's potential effect on endangered species and critical habitats, which was released in November 2020 and found that the herbicide was "likely to adversely affect" the vast majority of the species and habitats the agency considered.

See more on that development here: https://www.dtnpf.com/….

Read more about Bayer's attempts to settle existing and future Roundup claims here: https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

Follow her on Twitter @Emily_Unglesbee

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