Bayer can still hope for the US Supreme Court in the dispute over the glyphosate-based weed killer Roundup. Contrary to expectations, the Supreme Court in Washington on Monday did not announce whether or not it was reviewing the company’s $25 million award for possible carcinogenic effects of Roundup. However, the decision on Bayer’s application for revision is likely to be made in the next two weeks. “We expect a decision at a later date,” said Bayer in a brief statement.
Four weeks ago, Attorney General Elizabeth Prelogar, who represents the US government before the Supreme Court, advised against an appeal. With the appeal before the Supreme Court, Bayer wants to draw a line under the flood of lawsuits. The people of Leverkusen brought the problems with the takeover of the US group Monsanto in 2018 into the house. Its products include the weed killer Roundup, which contains glyphosate. The product is a bestseller. However, the International Cancer Agency IARC, an offshoot of the World Health Organization (WHO), had already classified glyphosate as “probably carcinogenic” in 2015.
Although the relevant regulatory authorities come to a different conclusion and consider glyphosate safe when used as intended, US lawyers are successfully relying on the IARC warning. In the first large damages trials, the jury and the judges sentenced Bayer to sometimes high damages. However, the tide seems to be turning now: the Leverkusen team was able to win the last three proceedings.
Among the cases lost for Bayer, both at first instance and on appeal, is Edwin Hardeman’s case, which is now before the Supreme Court. The California native attributes his cancer to years of using Roundup and has been awarded $25 million in damages. As Bayer thinks, wrongly. The US attorneys are basing their lawsuits on the fact that Bayer does not print any warnings on the packaging. However, the Leverkusen-based company points out that, according to the US regulatory authority EPA, glyphosate can be used safely. A cancer warning on the products is therefore misleading and excluded by federal law. US Attorney General Prelogar sees it differently. In contrast, the US government under Donald Trump had supported Bayer’s position.
Hardeman is one of many affected. In total, over 138,000 lawsuits have been filed against Bayer in the United States for Roundup, and 107,000 have been settled. 31,000 are still pending. Bayer initially provided around 9.6 billion dollars for the out-of-court settlements, but then increased the amount again. With a view to the Supreme Court, however, the group had recently stopped further comparisons.
Should the Supreme Court ultimately reject the appeal in the Hardeman case, Bayer will take a two-pronged approach. The Bayer lawyers have already applied for an appeal to the Supreme Court in another case. In the case of the Pilliod couple, there is also the question of the warning notices, but Bayer is also defending itself against the high punitive damages possible in the USA. Bayer was initially ordered to pay $2 billion in the Pilliod lawsuit, but the court later reduced the amount to $86.7 million.
Bayer also launched a five-point plan last year. In it, the company set aside $4.5 billion for future lawsuits. However, Bayer wants to encourage those affected not to engage a lawyer. In return, they should receive compensation more quickly and without having to take legal action. In addition, Bayer will no longer sell products containing glyphosate to private individuals in the USA from 2023. In Germany, the use of glyphosate by private individuals has been banned for a year.
But Bayer is also facing claims for damages in Germany because of glyphosate. Here, however, it is private and institutional investors who accuse Bayer of not informing shareholders and the capital market too late about the risk of legal action in the United States. They are therefore demanding around two billion euros.
