Will the Lawsuits Kill Glyphosate Off?

Baum Hedlund legal team

Baum Hedlund legal team which won 2019 verdict against Monsanto/Bayer for Dewayne Johnson. Johnson is in white in center.

In September the NY Times ran a story challenging whether the lawsuits being awarded against Bayer and it’s recent acquisition Monsanto, based on findings that their herbicide glyphosate caused Non-Hodgkins Lymphoma among applicators, will be enough to destroy the value of the product to the companies. The paper interviewed farmers who dismissed the court’s findings, arguing that it is too valuable a product for them to stop using it.

“Roundup is still a fabulous tool,” said one, Andy Bensend, who farms 5000 acres in northwestern Wisconsin and grows corn, soybeans and alfalfa. He says he relies on Roundup’s key ingredient — glyphosate — to easily kill weeds, helping increase his yields and reduce his costs.

“The faith that American farmers like Mr. Bensend have in Roundup,” the paper says, “is what prompted the German company Bayer to spend $63 billion in 2018 to buy Monsanto, the herbicide’s creator. And it is now what undergirds Bayer’s confidence that Roundup will remain a moneymaker, even if the company ends up paying billions of dollars to settle the legal morass it inherited with the sale.”

Nationwide, 94 percent of soybeans and roughly 90 percent of cotton and corn are resistant to glyphosate, allowing it to kill weeds but not crops.

A settlement has been looking more likely, the Times suggests, because a federal judge in California ordered Bayer to enter into negotiations with plaintiffs’ lawyers and appointed the victim-compensation expert Kenneth R. Feinberg to lead them. In addition, rattled investors have ratcheted up pressure on Bayer to put the litigation behind it. The three court losses so far undermined confidence in what is now the world’s largest pesticide-and-seed company. Its stock lost nearly 40 percent of its value at one point. At this year’s spring meeting, shareholders delivered what amounted to a rare vote of no confidence in Bayer’s chief executive, Werner Baumann. Some institutional investors say that without a deal, Mr. Baumann is unlikely to survive next year’s annual meeting. But they also insist that their gamble on Bayer will pay off.

Glyphosate is already the most widely used agricultural chemical in history, they reason, and farmers will continue to depend on Roundup as a growing population increases the demand for food. Independent market researchers project that the global market for glyphosate could reach $12 billion by 2024, regardless of health worries.

According to the article, Liam Condon, president of Bayer’s crop science division, said the litigation “doesn’t fundamentally change the rationale” for its purchase of Monsanto. As for Roundup, he said, “We are committed to making sure the product remains available.”

Consumer-protection and health groups have long warned about the safety of chemicals and pesticides used in agriculture. But alarm about a cancer link with Roundup exploded in 2015, when the International Agency for Research on Cancer, an arm of the World Health Organization, reviewed public studies and concluded that glyphosate can “probably” cause cancer.

The chemical was introduced to commercial agriculture in 1974. But the Roundup revolution took off in 1996, when Monsanto started selling genetically modified seeds that produced crops resistant to the herbicide’s attack on weeds.

“We spray the weeds and the crop keeps growing, and it’s just lovely,” said Lorenda Overman, one of the farmers interviewed in the article, who has 4,000 acres in eastern North Carolina. “We used to till the ground, then plant, then go back and plow at least twice, and then spray a chemical,” said Ms. Overman, who grows soybeans, corn and wheat. “Now we’re not tilling at all,” which means less soil erosion and less chemical runoff. We’re not using that diesel fuel, and our employees are doing other things so they’re more productive.”

Although the patent on glyphosate expired in 2000, the combination of Roundup and Roundup Ready seeds has ensured the products’ continued popularity. Farmers saw their costs fall. Glyphosate was also considered less toxic and environmentally friendlier than many of the other substances that American farmers were using. According to estimates by the United States Geological Survey, 287 million pounds of glyphosate was sprayed nationwide in 2016, 20 times as much as was used in 1992.

The phenomenally fast adoption of such a transformative technology, though, unsettled the public and spurred fears about the safety of the food supply. Glyphosate was drawn into the bitter public debate over genetically engineered crops, the international cancer agency’s report immediately turned into a rallying point for critics, and it provided ammunition to mount legal challenges to Roundup’s safety.

In succeeding years, several countries, localities and school districts banned or restricted its use. Some retail outlets, including Costco, stopped selling it. Just this month, Germany, Bayer’s base, announced it would ban glyphosate by the end of 2023.

But Bayer continues to maintain that decades of scientific studies have repeatedly shown glyphosate to be safe. Regulators around the world, in Canada, Australia, the European Union and the United States, have for the most part agreed.

As recently as August, the Environmental Protection Agency issued a ruling that it would not approve any product labels that said glyphosate caused cancer, stating it was a “false claim.”

In the court cases over Roundup, though, plaintiffs’ lawyers used evidence of Monsanto’s attempts over the years to influence regulators, shape scientific research and discredit critics to undermine governmental pronouncements.

Documents released as a result of the litigation, for example, included a confidential report from a consulting firm that Monsanto hired in 2018, which assured company executives that a White House adviser had said, “We have Monsanto’s back on pesticides regulation.”

It also summarized differences between the “professional” staff at the E.P.A. and the “political” employees over what the scientific evidence about glyphosate indicated.

Bayer now pledges to do business differently. It has announced that it will release all crop-safety studies — including the negative ones — and identify third-party funding so there is no confusing independent research with industry-financed work.

Most of the lawsuits filed so far have been brought by homeowners and groundskeepers, estimated R. Brent Wisner, a plaintiffs’ lawyer who worked on the Roundup trials and represents clients in more than 3,000 additional cases. Those kinds of buyers account for a only small slice of Roundup sales. Farmers are by far the primary users, and many say they are satisfied with glyphosate’s safety record.

In fact, it may be that one of the most daunting threats to glyphosate’s dominance and Roundup sales aren’t health concerns or lawsuits but weeds themselves. As use of the herbicide exploded, resistant variants evolved that can withstand higher concentrations of glyphosate or shrug it off altogether. Palmer amaranth, an Iron Man of superweeds, for instance, grows to eight feet and arms each plant with a million seeds.

“That is the much bigger issue,” said Scott H. Irwin, a professor in the department of agricultural and consumer economics at the University of Illinois at Urbana-Champaign. Whatever the cumulative effect of the lawsuits, he said, “in farmers’ minds, the weed-resistant question will determine whether they’re using it or not.”

That is one reason Bayer announced in June that it planned to invest $5.6 billion over the next 10 years in research on weed control. Whatever alternatives are developed, says Mr. Condon at Bayer, glyphosate will remain a base product.

And according to the NY Times, farmers seem receptive.

“I’ve used it for over 40 years, since I was first around the farm,” said Davie Stephens, who has 6,000 acres in Clinton, Ky., and is president of the American Soybean Association. “I’ve never had any problems whatsoever, and the farming community uses it more than anyone.”