Dicamba Fact Sheet

Print Email Share Tweet

Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide first registered in 1967. The herbicide is used on agricultural crops, fallow land, pastures, turfgrass and rangeland. Dicamba is also registered for non-agricultural uses in residential areas and other sites, such as golf courses. At these types of sites, it is primarily used to control broadleaf weeds such as dandelions, chickweed, clover and ground ivy.

Dicamba can be found in liquids, dusts and granule products. There are more than 1,000 products sold in the United States that include dicamba, according to the National Pesticide Information Center.

Dicamba’s mode of action is as an auxin agonist: it produces uncontrollable growth that leads to plant death.

Environmental Concerns 

Older versions of dicamba were known to drift far from where they were applied, and typically were not used widely during warm growing months when they could kill off-target crops or trees.

The Environmental Protection Agency approved the registration of new dicamba formulations in 2016, however, allowing for a new use of – “over-the-top” applications on growing dicamba-tolerant cotton and soybean plants. Scientists warned the new uses would result in dicamba drift damage.

The new uses for dicamba came about because of the development of widespread weed resistance to glyphosate-based herbicides, including the popular Roundup brand, introduced by Monsanto in the 1970s. In the 1990s, Monsanto introduced glyphosate-tolerant crops, and encouraged famers to use its “Roundup Ready” cropping systems. Farmers could plant Monsanto’s genetically engineered glyphosate-tolerant soybeans, corn, cotton and other crops, and then spray glyphosate herbicides such as Roundup directly over the top of the growing crops without killing them. The system made weed management easier for farmers as they could spray the chemicals directly over their entire fields during the growing season, wiping out weeds that competed with the crops for moisture and soil nutrients.

The popularity of the Roundup Ready system led to a surge in weed resistance, however, leaving farmers with fields of hardy weeds that would no longer die when sprayed with glyphosate.

In 2011 Monsanto announced that glyphosate, had been “relied on too long by itself” and said it planned to collaborate with BASF and develop a cropping system of genetically engineered crops that would tolerate being sprayed with dicamba. It said it would introduce a new type of dicamba herbicide that would not drift far from fields where it was sprayed.

Since the introduction of the new system, complaints about dicamba drift damage have surged in several farm states, including hundreds of complaints from Illinois, Indiana, Iowa, Missouri and Arkansas.

In a report dated Nov. 1, 2017, the EPA said it had tallied 2,708 official dicamba-related crop injury investigations (as reported by state departments of agriculture). The agency said there were more than 3.6 million acres of soybeans impacted at that time. Other impacted crops were tomatoes, watermelon, cantaloupe, vineyards, pumpkins, vegetables, tobacco, residential gardens, trees and shrubs

In July 2017, the Missouri Department of Agriculture temporarily issued a “Stop Sale, Use or Removal Order,” on all dicamba products in Missouri.  The state lifted the order in September 2017.

These are some dicamba products:

On Oct. 31, 2018, the U.S. Environmental Protection Agency (EPA) announced an extension of Engenia, XtendiMax and FeXapan registrations through 2020 for “over-the-top” use in dicamba-tolerant cotton and soybean fields. EPA said it had enhanced the previous labels and put in place additional safeguards in an effort to increase the success and safe use of the product in the field.

The two-year registration is valid through Dec. 20, 2020. The EPA has stated the following provisions:

  • Only certified applicators may apply dicamba over-the-top (those working under the supervision of a certified applicator may no longer make applications)
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting or up until the R1 growth stage (first bloom), whichever comes first
  • Prohibit over-the-top application of dicamba on cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from four to two
  • For soybeans, the number of over-the-top applications remains at two
  • Applications will be allowed only from one hour after sunrise to two hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Enhanced tank clean-out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

Food Residues 

Just as glyphosate applications in farm fields have been found to leave residues of glyphosate on and in finished foods, such as oatmeal, breads, cereals, etc., dicamba residues are expected to leave residues in food. Farmers whose produce has been contaminated with dicamba residues via drift have expressed concerns that their products might be rejected or otherwise harmed commercially because of the residue issue.

The EPA has set tolerance levels for dicamba is several grains and for the meat of livestock that consume grains, but not for a variety of fruits and vegetables. A tolerance for dicamba in soybeans is set at 10 parts per million, for instance, in the United States, and a 2 parts per million for wheat grain. Tolerances can be seen here. 

The EPA has issued this statement regarding dicamba residues in food: “EPA performed the analysis required by the Federal Food, Drug and Cosmetic Act (FFDCA) and determined that residues on food are “safe” – meaning that there is a reasonable certainty of no harm to people, including all reasonably identifiable subpopulations, including infants and children, from dietary and all other non-occupational exposure to dicamba.”

Cancer and Hypothyroidism 

The EPA states that dicamba is not likely to be carcinogenic, but some studies have found an increased risk of cancer for users of dicamba.

See these studies regarding the human health effects of dicamba:

Dicamba use and cancer incidence in the agricultural health study: an updated analysis International Journal of Epidemiology (05.01.2020) “Among 49 922 applicators, 26 412 (52.9%) used dicamba. Compared with applicators reporting no dicamba use, those in the highest quartile of exposure had elevated risk of liver and intrahepatic bile duct cancer and chronic lymphocytic leukaemia and decreased risk of myeloid leukaemia.”

Pesticide Use and Incident Hypothyroidism in Pesticide Applicators in the Agricultural Health Study.  Environmental Health Perspectives (9.26.18)
“In this large prospective cohort of farmers that were occupationally exposed to pesticides, we found that ever-use of four organochlorine insecticides (aldrin, chlordane, heptachlor, and lindane), four organophosphate insecticides (coumaphos, diazinon, dichlorvos, and malathion), and three herbicides (dicamba, glyphosate, and 2,4-D) was associated with increased risk of hypothyroidism.”

Hypothyroidism and pesticide use among male private pesticide applicators in the agricultural health study. Journal of Occupational Environmental Medicine (10.1.14)
“The herbicides 2,4-D, 2,4,5-T, 2,4,5-TP, alachlor, dicamba, and petroleum oil were all associated with an increased odds of hypothyroidism”

A review of pesticide exposure and cancer incidence in the Agricultural Health Study cohort.  Environmental Heath Perspectives (8.1.10)
“We reviewed 28 studies; most of the 32 pesticides examined were not strongly associated with cancer incidence in pesticide applicators. Increased rate ratios (or odds ratios) and positive exposure–response patterns were reported for 12 pesticides currently registered in Canada and/or the United States (alachlor, aldicarb, carbaryl, chlorpyrifos, diazinon, dicamba, S-ethyl-N,N-dipropylthiocarbamate, imazethapyr, metolachlor, pendimethalin, permethrin, trifluralin).”

Cancer Incidence among Pesticide Applicators Exposed to Dicamba in the Agricultural Health Study. Environmental Health Perspectives (7.13.06)
“Exposure was not associated with overall cancer incidence nor were there strong associations with any specific type of cancer. When the reference group comprised low-exposed applicators, we observed a positive trend in risk between lifetime exposure days and lung cancer (p = 0.02), but none of the individual point estimates was significantly elevated. We also observed significant trends of increasing risk for colon cancer for both lifetime exposure days and intensity-weighted lifetime days, although these results are largely due to elevated risk at the highest exposure level.”

Non-Hodgkin’s Lymphoma and Specific Pesticide Exposures in Men: Cross-Canada Study of Pesticides and Health.  Cancer Epidemiology, Biomarkers and Prevention (11.01)
“Among individual compounds, in multivariate analyses, the risk of NHL was statistically significantly increased by exposure to the herbicides…dicamba (OR, 1.68; 95% CI, 1.00–2.81); ….In additional multivariate models, which included exposure to other major chemical classes or individual pesticides, personal antecedent cancer, a history of cancer among first-degree relatives, and exposure to mixtures containing dicamba (OR, 1.96; 95% CI, 1.40–2.75)…were significant independent predictors of an increased risk for NHL”

Litigation 

The dicamba drift damage concerns have prompted lawsuits from farmers in many U.S. states. Details on the litigation can be found here.

Appeals court focused on damages question ahead of Johnson v. Monsanto hearing

Print Email Share Tweet

A California appeals court looks poised to issue a ruling that would uphold the first U.S. trial victory involving allegations that Monsanto’s Roundup weed killer causes cancer.

The United States Court of Appeal First Appellate District on Wednesday notified lawyers for plaintiff Dewayne “Lee” Johnson and legal counsel for Monsanto that they should be prepared to focus on the question of damages awarded in the case at a hearing scheduled for June 2.

The fact that the court is showing it is interested in discussing what amount of damages are appropriate rather than issues pertaining to Monsanto’s request to overturn the trial loss entirely bodes well for the plaintiff’s side, said legal observers.

Monsanto August 2018 loss to Johnson, a California school groundskeeper, marked the first of three Roundup trial losses for the company, which was acquired by Germany’s Bayer AG nearly two years ago. The jury in the Johnson case found that Monsanto was negligent in failing to warn Johnson of the cancer risk of its herbicides and awarded Johnson $289 million in damages, including $250 million in punitive damages. The trial judge later lowered the award to $78.5 million. But the loss sent Bayer’s shares spirally lower and stoked investor unrest that has persisted as the number of additional Roundup cancer claims filed against Monsanto have grown.

In appealing the verdict, Monsanto asked the court to either reverse the trial decision and enter a judgment for Monsanto or reverse and remand the case for a new trial. Monsanto argued that the verdict was flawed because of exclusion of key evidence and the “distortion of reliable science.” If nothing else,  Monsanto asked the appeals court to reduce the portion of the jury award for “future noneconomic damages” from $33 million to $1.5 million and to wipe out the punitive damages altogether.  Monsanto’s argument on reducing future non-economic damages is based on the company’s position that Johnson is likely to die soon and thus will not suffer long-term future pain and suffering.

Johnson cross-appealed seeking reinstatement of the full jury award of $289 million.

Ahead of the hearing on the matter, the judicial panel said this: “The parties should be ready to address the following issue at oral argument, currently scheduled for June 2, 2020. Assume that this court agrees with Monsanto Company that the award of future noneconomic damages should be reduced. If the court directs such a reduction, should it also reduce the award of punitive damages to maintain the trial court’s 1:1 ratio of compensatory damages to punitive damages?”

In a separate matter, the court last month said it was rejecting an application by the California Attorney General to file an amicus brief on Johnson’s side.

The Johnson trial was covered by media outlets around the world and put a spotlight on questionable Monsanto conduct. Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

In its appeal, Monsanto argued that jurors were acting on emotion rather than scientific fact and “that there is no evidence that Monsanto had actual knowledge that its glyphosate-based herbicides cause cancer. Nor could there be, when the scientific consensus, consistently accepted by EPA and other regulators around the world, contradicts that conclusion. It was not malicious for the regulators to reach this judgment, and it was not malicious for Monsanto to share their view of the science.”

Tens of thousands of plaintiffs have filed suit against Monsanto making claims similar to Johnson’s, and two additional trials have taken place since the Johnson trial. Both those trials also resulted in large verdicts against Monsanto.

Bayer and lawyers for more than 50,000 plaintiffs have been trying to negotiate a national settlement for the last year but Bayer recently backed away from some already negotiated settlement amounts. With courthouses closed around the country, the plaintiffs’ attorneys have lost the near-term leverage they had when multiple new trials were set to take place this summer and fall.

Glyphosate Fact Sheet: Cancer and Other Health Concerns

Print Email Share Tweet

Glyphosate, a synthetic herbicide patented in 1974 by the Monsanto Company and now manufactured and sold by many companies in hundreds of products, has been associated with cancer and other health concerns. Glyphosate is best known as the active ingredient in Roundup-branded herbicides, and the herbicide used with “Roundup Ready” genetically modified organisms (GMOs).

Herbicide tolerance is the most prevalent GMO trait engineered into food crops, with some 90% of corn and 94% of soybeans in the U.S. engineered to tolerate herbicides, according to USDA data. A 2017 study found that Americans’ exposure to glyphosate increased approximately 500 percent since Roundup Ready GMO crops were introduced in the U.S in 1996. Here are some key facts about glyphosate:

Most Widely Used Pesticide

According to a February 2016 study, glyphosate is the most widely used pesticide: “In the U.S., no pesticide has come remotely close to such intensive and widespread use.” Findings include:

  • Americans have applied 1.8 million tons of glyphosate since its introduction in 1974.
  • Worldwide 9.4 million tons of the chemical has been sprayed on fields – enough to spray nearly half a pound of Roundup on every cultivated acre of land in the world.
  • Globally, glyphosate use has risen almost 15-fold since Roundup Ready GMO crops were introduced.

Statements from scientists and health care providers 

Cancer concerns

The scientific literature and regulatory conclusions regarding glyphosate and glyphosate-based herbicides show a mix of findings, making the safety of the herbicide a hotly debated subject. 

In 2015, the World Health Organization’s International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic to humans” after reviewing years of published and peer-reviewed scientific studies. The team of international scientists found there was a particular association between glyphosate and non-Hodgkin lymphoma.

U.S. agencies: At the time of the IARC classification, the Environmental Protection Agency (EPA) was conducting a registration review. The EPA’s Cancer Assessment Review Committee (CARC) issued a report in September 2016 concluding that glyphosate was “not likely to be carcinogenic to humans” at doses relevant to human health. In December 2016, the EPA convened a Scientific Advisory Panel to review the report; members were divided in their assessment of EPA’s work, with some finding the EPA erred in how it evaluated certain research. Additionally, the EPA’s Office of Research and Development determined that EPA’s Office of Pesticide Programs had not followed proper protocols in its evaluation of glyphosate, and said the evidence could be deemed to support a “likely” carcinogenic or “suggestive” evidence of carcinogenicity classification. Nevertheless the EPA issued a draft report on glyphosate in December 2017 continuing to hold that the chemical is not likely to be carcinogenic. In April 2019, the EPA reaffirmed its position that glyphosate poses no risk to public health. But earlier that same month, the U.S. Agency for Toxic Substances and Disease Registry (ATSDR) reported that there are links between glyphosate and cancer. According to the draft report from ATSDR, “numerous studies reported risk ratios greater than one for associations between glyphosate exposure and risk of non-Hodgkin’s lymphoma or multiple myeloma.” 

European Union: The European Food Safety Authority and the European Chemicals Agency have said glyphosate is not likely to be carcinogenic to humans. A March 2017 report by environmental and consumer groups argued that regulators relied improperly on research that was directed and manipulated by the chemical industry. A 2019 study found that Germany’s Federal Institute for Risk Assessment report on glyphosate, which found no cancer risk, included sections of text that had been plagiarized from Monsanto studies.  In February 2020, reports surfaced that 24 scientific studies submitted to the German regulators to prove the safety of glyphosate came from a large German laboratory that has been accused of fraud and other wrongdoing.

WHO/FAO Joint Meeting on Pesticide Residues determined in 2016 that glyphosate was unlikely to pose a carcinogenic risk to humans from exposure through the diet, but this finding was tarnished by conflict of interest concerns after it came to light that the chair and co-chair of the group also held leadership positions with the International Life Sciences Institute, a group funded in part by Monsanto and one of its lobbying organizations.

California OEHHA: On March 28, 2017, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment confirmed it would add glyphosate to California’s Proposition 65 list of chemicals known to cause cancer. Monsanto sued to block the action but the case was dismissed. In a separate case, the court found that California could not require cancer warnings for products containing glyphosate. On June 12, 2018, a U.S. District Court denied the California Attorney General’s request for the court to reconsider the decision. The court found that California could only require commercial speech that disclosed “purely factual and uncontroversial information,” and the science surrounding glyphosate carcinogenicity was not proven.

Agricultural Health Study: A long-running U.S. government-backed prospective cohort study of farm families in Iowa and North Carolina has not found any connections between glyphosate use and non-Hodgkin lymphoma, but the researchers reported that “among applicators in the highest exposure quartile, there was an increased risk of acute myeloid leukemia (AML) compared with never users…” The most recent published update to the study was made public in late 2017.

Recent studies report cancer links and concerns about validity of EPA classification: 

Cancer lawsuits

More than 42,000 people have filed suit against Monsanto Company (now Bayer) alleging that exposure to Roundup herbicide caused them or their loved ones to develop non-Hodgkin lymphoma (NHL), and that Monsanto covered up the risks. As part of the discovery process, Monsanto has had to turn over millions of pages of internal records. We are posting these Monsanto Papers as they become available. For news and tips about the ongoing legislation, see Carey Gillam’s Roundup Trial Tracker. The first three trials ended in large awards to plaintiffs for liability and damages, with juries ruling that Monsanto’s weed killer was a substantial contributing factor in causing them to develop NHL. Bayer is appealing the rulings. 

Monsanto influence in research: In March 2017, the federal court judge unsealed some internal Monsanto documents that raised new questions about Monsanto’s influence on the EPA process and about the research regulators rely on. The documents suggest that Monsanto’s long-standing claims about the safety of glyphosate and Roundup do not necessarily rely on sound science as the company asserts, but on efforts to manipulate the science

More information about scientific interference:

Endocrine disruption and other health concerns

Some research suggests that glyphosate may be an endocrine disruptor. It has also been linked to liver disease, birth defects and reproductive problems in laboratory animals; and may kill beneficial gut bacteria and damage the DNA in human embryonic, placental and umbilical cord cells. A 2019 study in a Nature journal reported increases in obesity, reproductive and kidney diseases, and other problems in the second- and third-generation offspring of rats exposed to glyphosate. See the study and Washington State University press release.

Recent studies have shown adverse biological effects from low-dose exposures to glyphosate at levels to which people are routinely exposed.

  • A 2017 study associated chronic, very low-level glyphosate exposures to non-alcoholic fatty liver disease in rats. According to the researchers, the results “imply that chronic consumption of extremely low levels of a GBH formulation (Roundup), at admissible glyphosate-equivalent concentrations, are associated with marked alterations of the liver proteome and metabolome,” the biomarkers for NAFLD.
  • A birth cohort study in Indiana published in 2017 – the first study of glyphosate exposure in US pregnant women using urine specimens as a direct measure of exposure – found detectable levels of glyphosate in more than 90% of the pregnant women tested and found the levels were significantly correlated with shortened pregnancy lengths.
  • A 2018 ecological and population study conducted in Argentina found high concentrations of glyphosate in the soil and dust in agricultural areas that also reported higher rates of spontaneous abortion and congenital abnormalities in children, suggesting a link between environmental exposure to glyphosate and reproductive problems. No other relevant sources of pollution were identified.
  • A 2018 rat study conducted by the Ramazzini Institute reported that low-dose exposures to Roundup at levels considered safe significantly altered the gut microbiota in some of the rat pups. Another 2018 study reported that higher levels of glyphosate administered to mice disrupted the gut microbiota and caused anxiety and depression-like behaviors.
  • A 2018 rat study by Argentinian researchers linked low-level perinatal glyphosate exposures to impaired female reproductive performance and congenital anomalies in the next generation of offspring.

Glyphosate has also been linked by recent studies to harmful impacts on bees and monarch butterflies.

Sri Lankan scientists awarded AAAS freedom award for kidney disease research

The AAAS has awarded two Sri Lankan scientists, Drs. Channa Jayasumana and Sarath Gunatilake, the 2019 Award for Scientific Freedom and Responsibility for their work to “investigate a possible connection between glyphosate and chronic kidney disease under challenging circumstances.” The scientists have reported that glyphosate plays a key role in transporting heavy metals to the kidneys of those drinking contaminated water, leading to high rates of chronic kidney disease in farming communities. See papers in  SpringerPlus (2015), BMC Nephrology (2015), Environmental Health (2015), International Journal of Environmental Research and Public Health (2014). The AAAS award had been under review since February amidst a fierce opposition campaign by pesticide industry allies to undermine the work of the scientists

Desiccation: another source of dietary exposures 

Some farmers use glyphosate on non-GMO crops such as wheat, barley, oats, and lentils to dry down the crop ahead of harvest in order to accelerate the harvest. This practice, known as desiccation, may be a significant source of dietary exposure to glyphosate.

Glyphosate in food: U.S. drags its feet on testing

The USDA quietly dropped a plan to start testing food for residues of glyphosate in 2017. Internal agency documents obtained by U.S. Right to Know show the agency had planned to start testing over 300 samples of corn syrup for glyphosate in April 2017. But the agency killed the project before it started. The U.S. Food and Drug Administration began a limited testing program in 2016, but the effort was fraught with controversy and internal difficulties and the program was suspended in September 2016. Both agencies have programs that annually test foods for pesticide residues but both have routinely skipped testing for glyphosate.

Before the suspension, one FDA chemist found alarming levels of glyphosate in many samples of U.S. honey, levels that were technically illegal because there have been no allowable levels established for honey by the EPA. Here is a recap of news about glyphosate found in food:

Pesticides in our food: Where’s the safety data?

USDA data from 2016 shows detectable pesticide levels in 85% of more than 10,000 foods sampled, everything from mushrooms to grapes to green beans. The government says there are little to no health risks, but some scientists say there is little to no data to back up that claim. See “Chemicals on our food: When “safe” may not really be safe: Scientific scrutiny of pesticide residue in food grows; regulatory protections questioned,” by Carey Gillam (11/2018).

Bayer said to be reneging on Roundup settlement deals as virus closes courthouses

Print Email Share Tweet

Bayer AG is reneging on negotiated settlements with several U.S. law firms representing thousands of plaintiffs who claim exposure to Monsanto’s Roundup herbicides caused them to develop non-Hodgkin lymphoma, sources involved in the litigation said on Friday.

The reversal comes as U.S. courts are closed to the public because of the spreading coronavirus, eliminating the specter of another Roundup cancer trial in the near future.

Bayer, which bought Monsanto in June of 2018, has been engaged in settlement talks for close to a year, seeking to put an end to mass litigation that has driven down the company’s stock, spurred investor unrest, and thrust questionable corporate conduct into a public spotlight.  The first three trials led to three losses for Bayer and jury awards of more than $2 billion, though trial judges later reduced the awards.

Bayer made a public statement this week saying that settlement talks have been slowed by the coronavirus pandemic, but multiple plaintiffs’ lawyers said that was not true.

According to the plaintiffs’ attorneys, Bayer has been going back to law firms that had already completed negotiations for specified settlements for their clients, saying the company will not honor the agreed-upon amounts.

“A lot of lawyers around the country thought they had tentative deals,” said Virginia attorney Mike Miller, whose firm represents roughly 6,000 clients and won two of the three Roundup trials to date. Bayer is now demanding a “hair cut” on those deals, Miller said.

Whether or not the various firms will take the reduced offers remains to be seen.  “These are uncertain economic times,” Miller said. “People have to consider what’s best for their clients.”

In response to a request for comment, a Bayer spokesman provided the following statement: “We’ve made progress in the Roundup mediation discussions, but the COVID-19 dynamics, including restrictions imposed in recent weeks, have caused meeting cancellations and delayed this process…  As a result, the mediation process has significantly slowed, and realistically, we expect this will continue to be the case for the immediate future. During this time, we will continue to do whatever we can to help combat the global COVID-19 pandemic, consistent with our vision of ‘health for all, hunger for none.’ We cannot speculate about potential outcomes from the negotiations or timing, given the uncertainties surrounding the pandemic and the confidentiality of this process, but we remain committed to engaging in mediation in good faith.”

US Right to Know reported in early January that the parties were working on a settlement of roughly $8 billion to $10 billion. Bayer has acknowledged facing claims from more than 40,000 plaintiffs, but plaintiffs’ attorneys have said the total number of claims is much higher.

Among the firms who had negotiated settlements for their clients are the Andrus Wagstaff firm from Denver, Colorado and the Los Angeles firm of Baum Hedlund Aristei & Goldman. Both reached agreements last year with Bayer.

In addition, the Weitz & Luxenberg firm from New York and Mike Miller’s firm recently reached what they thought were agreements on terms. Each of the firms represents thousands of plaintiffs.

The primary leverage plaintiffs’ attorneys had been using in the settlement negotiations was the threat of another public trial. In the first three trials, damning internal Monsanto documents laid bare evidence that the company knew of the cancer risks of its glyphosate-based herbicides but failed to warn consumers; ghost-wrote scientific papers proclaiming the safety of its herbicides; worked with certain regulatory officials to quash a government review of glyphosate toxicity; and engineered efforts to discredit critics.

The revelations have triggered outrage around the world and prompted moves to ban the glyphosate-based herbicides.

Several trials that were to have been held over the last several months were cancelled shortly before they were scheduled to begin when Bayer agreed to individual settlements for those specific trial plaintiffs. Two of those cases involved children stricken with non-Hodgkin lymphoma and a third was brought by a woman suffering from non-Hodgkin lymphoma. Those plaintiffs, and others who have agreed to settlements in lieu of trials in recent months, are protected and are not part of the current rollback effort by Bayer, according to multiple sources involved.

Bayer is slated to hold its annual shareholders’ meeting on April 28. For the first time in the company’s history, the meeting will be held entirely online.

The first three plaintiffs to win jury awards against Monsanto have yet to receive any money as Bayer appeals the verdicts.

New legal filings over alleged Roundup dangers amid court coronavirus delays

Print Email Share Tweet

Even as the spread of the coronavirus closes courthouse doors to the public and lawyers, legal maneuvering continues over claims of danger associated with Monsanto’s glyphosate-based herbicides.

Two nonprofit advocacy groups, the Center for Food Safety (CFS) and the Center for Biological Diversity (CBD), filed an amicus brief on behalf of cancer patient Edwin Hardeman on March 23. Hardeman won a jury verdict against Monsanto of $80 million in March of 2019, becoming the second winning plaintiff in the Roundup litigation.  The trial judge reduced the jury award to a total of $25 million. Monsanto appealed the award nonetheless, asking an appellate court to overturn the verdict.

The new legal brief supporting Hardeman counters one filed by the Environmental Protection Agency (EPA) that backs Monsanto in the Hardeman appeal.

The CFS and CBD brief states that Monsanto and the EPA are both wrong to assert that the EPA’s approval of glyphosate herbicides preempts challenges to the safety of the products:

        “Contrary to Monsanto’s claims, Mr. Hardeman’s case is not preempted by EPA’s conclusion relative to glyphosate because Roundup is a glyphosate formulation that EPA has never evaluated for carcinogenicity. Moreover, significant flaws and biases undermined EPA’s evaluation of glyphosate’s carcinogenicity and the district court was correct in allowing testimony to that effect,” the brief states.

         “Monsanto wants this Court to believe that “glyphosate” is synonymous with ‘Roundup.’ The reason is simple: if the terms are interchangeable, then, they argue, EPA’s finding that glyphosate is “not likely to be carcinogenic” would apply to Roundup and might preempt Mr. Hardeman’s case. However as the evidence presented at trial demonstrated, “glyphosate” and “Roundup” are very much not synonymous, and Roundup is far more toxic than glyphosate.  Moreover, EPA has never evaluated Roundup for carcinogenicity. Glyphosate formulations, like Roundup, contain additional ingredients (co-formulants) to improve performance in some way. EPA understands these formulations are more toxic than glyphosate alone, yet nevertheless focused its cancer evaluation on pure glyphosate…”

Separate lawsuit names EPA 

In a separate legal action, last week the Center for Food Safety filed a federal lawsuit against the EPA over its continued support of glyphosate. The claim, made on behalf of a  coalition of farm workers, farmers, and conservationists, alleges the EPA is violating the Federal Insecticide, Fungicide, and Rodenticide Act as well as the Endangered Species Act by continuing to allow widespread use of glyphosate herbicides.

“While EPA defends glyphosate, juries in several cases have found it to cause cancer, ruling in favor of those impacted by exposure,” CFS said in a press release. “Glyphosate formulations like Roundup are also well-established as having numerous damaging environmental impacts. After a registration review process spanning over a decade, EPA allowed the continued marketing of the pesticide despite the agency’s failure to fully assess glyphosate’s hormone-disrupting potential or its effects on threatened and endangered species.”

Bill Freese, science policy analyst at CFS said: “Far from consulting the ‘best available science,’ as EPA claims, the agency has relied almost entirely on Monsanto studies, cherry-picking the data that suits its purpose and dismissing the rest.”

Virus-related court disruptions

Monsanto and its German owner Bayer AG have been working to try to settle a large number of the tens of thousands of Roundup cancer claims brought in U.S. courts. That effort continues, and specific settlements have already been reached for some individual plaintiffs, according to sources involved in the talks. US Right to Know reported in early January that the parties were working on a settlement of roughly $8 billion to $10 billion.

However, many other cases continue to work their way through the court system, including the appeal of Dewayne “Lee” Johnson, the first plaintiff to win against Monsanto in the Roundup litigation. Johnson’s attorneys had hoped the California Court of Appeal would hold oral arguments in Monsanto’s appeal of Johnson’s win sometime in April. But that now appears extremely unlikely as other cases scheduled for March have now been pushed into April.

As well, all in-person sessions for oral arguments in the appeals court are currently suspended. Counsel who choose to present oral argument must do so over the telephone, the court states.

Meanwhile, courts in multiple California counties are closed and jury trials have been suspended to try to protect people from the spread of the virus. The federal court in San Francisco, where the multidistrict Roundup litigation is centralized, is closed to the public, including a suspension of trials, until May 1. Judges can still issue rulings, however, and hold hearings by teleconference.

In Missouri, where most of the state court Roundup cases are based, all in-person court proceedings (with a few exceptions) are suspended through April 17, according to a Missouri Supreme Court order. 

One Missouri case that had been set to go to trial in March 30 in St. Louis City Court now has a trial date set for April 27.  The case is Seitz v Monsanto #1722-CC11325.

In ordering the change, Judge Michael Mullen wrote: “DUE TO THE NATIONAL PANDEMIC OF THE COVID-19 VIRUS AND THE UNAVAILABILITY OF JURORS IN THIS CIRCUIT THE COURT HEREBY REMOVES THIS CASE FROM THE MARCH 30, 2020 TRIAL DOCKET. CAUSE IS RESET FOR A TRIAL SETTING CONFERENCE ON MONDAY, APRIL 27, 2020 @ 9:00 AM.”

Shareholder files suit against Bayer over “disastrous” Monsanto acquisition

Print Email Share Tweet

A California shareholder of Bayer AG on Friday filed a lawsuit against the companies’ top executives claiming they breached their duty of “prudence” and “loyalty” to the company and investors by buying Monsanto Co. in 2018, an acquisition the suit claims has “inflicted billions of dollars of damages” on the company.

Plaintiff Rebecca R. Haussmann, trustee of the Konstantin S. Haussmann Trust, is the sole named plaintiff in the suit, which was filed in New York County Supreme Court.  The named defendants include Bayer CEO Werner Baumann, who orchestrated the $63 billion Monsanto purchase, and Bayer Chairman Werner Wenning, who announced last month he was stepping down from the company earlier than planned. The suit claims that Wenning’s decision came after Bayer improperly obtained a copy of the then-draft shareholder lawsuit “through corporate espionage.”

The lawsuit also claims that Bayer’s recent announcement of an audit of its acquisition actions is “bogus” and “part of the ongoing cover-up and intended to create a legal barrier to this case to protect Defendants from their accountability…”

The action is a shareholder derivative complaint, meaning it is brought on behalf of the company against company insiders. It seeks compensatory damages for shareholders and disgorgement of “all compensation paid to the Bayer Managers and Supervisors who participated in bringing about this Acquisition…” The suit also seeks return of funds paid to banks and law firms involved in the acquisition.

The defendants include not only Baumann and Wenning, but also some present and former Bayer directors and top managers, as well as BOFA Securities, Inc., Bank of America, Credit Suisse Group AG and the law firms of Sullivan & Cromwell LLP and Linklaters LLP.

A Bayer spokesman did not respond to a request for comment.

The lawsuit comes a little more than a month before Bayer’s April 28 annual shareholders’ meeting in Bonn, Germany.  At last year’s annual meeting, 55 percent of shareholders registered their unhappiness with Baumann and other managers over the Monsanto deal and the subsequent loss of roughly $40 billion in market value.

Bayer’s purchase of Monsanto has been clouded by tens of thousands of lawsuits alleging Monsanto’s glyphosate-based herbicides cause non-Hodgkin lymphoma and that the company deceived customers about the risks. Bayer proceeded with the acquisition even after the International Agency for Research on Cancer in 2015 classified glyphosate as a probable human carcinogen with a positive association to non-Hodgkin lymphoma, and despite knowledge of the spreading legal claims.

Bayer then completed the Monsanto purchase just two months before the first Roundup cancer trial ended with a $289 million verdict against the company. Since that time two more trials have ended in similar findings against the company with verdicts totaling more than $2 billion, though the trial judges in each case have lowered the verdicts. All are now on appeal.

Bayer has said there are more than 45,000 plaintiffs currently making similar claims. The company has been working to settle the lawsuits for a figure widely reported to be around $10 billion but has thus far not been successful in putting an end to the litigation.

The lawsuit claims that during 2017 and 2018, as the filing of new Roundup cancer lawsuits was escalating, the ability of Bayer management to conduct due diligence into Monsanto and the litigation risks was “severely restricted.” As a result, “Bayer could not conduct the kind of intrusive and thorough due diligence into Monsanto’s business and legal affairs called for under the circumstances.”

The suit claims that Monsanto did not disclose a material risk from Roundup and failed to quantify any potential financial impact. Monsanto’s executives “had every incentive to minimize the Roundup risk in order to get Bayer to close the deal,” the lawsuit states.

The shareholder lawsuit claims that “these types of mass-tort cases… can destroy a company.”

The lawsuit points to the fact that Monsanto’s glyphosate herbicides are now being restricted and/or banned in many parts of the world, including in Germany.

“The Monsanto Acquisition is a disaster. Roundup is doomed as a commercial product,” the lawsuit states.

Dicamba litigation against Bayer, BASF poised to explode, lawyers say

Print Email Share Tweet

Thousands of farmers from multiple states are expected to join mass tort litigation pending in federal court over claims that weed-killing products developed by the former Monsanto Co. and other chemical companies are destroying and contaminating crops, including organic production, a group of lawyers and farmers said on Wednesday.

The number of farmers seeking legal representation to file suit against Monsanto and BASF has surged over the last week and a half after a staggering $265 million jury award to a Missouri peach farmer who alleged the two companies were to blame for the loss of his livelihood, according to Joseph Peiffer of the Peiffer Wolf Carr & Kane law firm. Peiffer said more than 2,000 farmers are likely to become plaintiffs.

There are already over 100 farmers making claims against the companies that have been combined in multidistrict litigation in U.S. District Court in Cape Girardeau, Missouri.

Earlier this month the bellwether trial for that litigation ended with a unanimous jury awarding the family-owned Bader Farms $15 million in compensatory damages and $250 million in punitive damages, to be paid by  Bayer AG, the German company that bought Monsanto in 2018, and by BASF.  The jury concluded that  Monsanto and BASF conspired in actions they knew would lead to widespread crop damage because they expected it would increase their own profits.

We now have the road map to get justice for dicamba victims.  The Bader verdict in Missouri sent a clear signal that you can’t profit off of hurting innocent farmers and get away with it,” said Peiffer.  “The crop damage research and increasing farmer complaints forecast a much bigger problem than Monsanto/Bayer and BASF want to admit.”

U.S. Right to Know asked the Environmental Protection Agency (EPA), which approved the dicamba herbicides despite scientific evidence of the risks, to provide a national tally for the total number of dicamba drift complaints. But while the EPA said it was taking the reports “very seriously,” it declined to provide a tally and said it was up to state agencies to handle such complaints.

The EPA also indicated it was not certain the damage reported by farmers was, in fact, due to dicamba.

“The underlying causes of the various damage incidents are not yet clear, as on-going investigations have yet to be concluded,” said an EPA spokesperson. “But EPA is reviewing all available information carefully.

“Ticking Time Bomb”

Just as Monsanto and Bayer have been confronted with damning internal documents in losing three trials over claims Monsanto’s glyphosate-based herbicides cause cancer, there are many internal corporate documents discovered in the dicamba litigation that helped convince the jury of the company’s guilt, according to Bader Farms attorney Bill Randles.

Randles has obtained hundreds of internal Monsanto and BASF corporate records demonstrating the companies were aware of the harm their products would create even as they publicly professed the opposite. He said one BASF document referred to dicamba damage complaints as a “ticking time bomb” that “has finally exploded.”

Bader and the other farmers allege that Monsanto was negligent in rolling out genetically engineered cotton and soybeans that could survive being sprayed with dicamba herbicides because it was known that using the crops and chemicals as designed would lead to damage.

Dicamba has been used by farmers since the 1960s but with limits that took into account the chemical’s propensity to drift far from where it was sprayed. When Monsanto’s popular glyphosate weed killing products such as Roundup started losing effectiveness due to widespread weed resistance, Monsanto decided to launch a dicamba cropping system similar to its popular Roundup Ready system, which paired glyphosate-tolerant seeds with glyphosate herbicides.

Farmers buying the new genetically engineered dicamba-tolerant seeds could more easily treat stubborn weeds by spraying  entire fields with dicamba, even during warm growing months, without harming their crops, according to Monsanto, which announced a  dicamba collaboration with BASF in 2011. The companies said their new dicamba herbicides would be less volatile and less prone to drift than old formulations of dicamba. But they refused to allow for independent scientific testing.

The EPA approved the use of Monsanto’s dicamba herbicide “XtendiMax” in 2016. BASF developed its own dicamba herbicide that it calls Engenia. Both XtendiMax and Engenia were first sold in the United States in 2017.

DuPont also introduced a dicamba herbicide and could also face multiple farmer lawsuits, according to the plaintiffs’ lawyers.

In their legal claims,  farmers allege that they have experienced damage both from the drift of old versions of dicamba and drifting newer versions as well. The farmers claim that the companies hoped fears of drift damage would force farmers to buy the special GMO dicamba-tolerant seeds in order to protect their cotton and soybean fields.

Farmers growing other types of crops have been without any means to protect their fields.

North Carolina farmer Marty Harper, who grows about 4,000 acres of tobacco as well as peanuts, cotton, corn, soybeans, wheat, and sweet potatoes, said dicamba-related damage to his tobacco fields exceeds  $200,000.  He said part of his peanut crop has also been damaged.

More than 2,700 farms have suffered dicamba damage, according to University of Missouri crop science professor Kevin Bradley.

As settlement talks drag on, another Monsanto Roundup trial nears

Print Email Share Tweet

Continuing to lack a resolution in the massive nationwide Roundup cancer litigation, a leading U.S. plaintiffs’ law firm is pressing ahead with preparations for a California trial involving a critically ill cancer patient and his wife who are suing the former Monsanto company claiming the man’s disease is due to years of his use of Roundup herbicide.

The Miller Firm, which has about 6,000 Roundup plaintiffs, is now preparing to go to trial against Monsanto’s German owner Bayer AG on May 5 in Marin County Superior Court in California. The case has been granted preference status –  meaning a quick trial date – because plaintiff Victor Berliant is critically ill. A deposition of Berliant is being scheduled for next week.

Berliant, a man in his 70s, has been diagnosed with Stage IV T-cell non-Hodgkin lymphoma and is planning to undergo a bone marrow transplant in March after multiple rounds of chemotherapy failed. His lawyers say it is necessary to take his deposition before the transplant as there is a risk he may not survive the procedure or may be otherwise unable to participate at the May trial.

Berliant used Roundup from approximately 1989 to 2017, according to his lawsuit. His wife, Linda Berliant, is also named as a plaintiff, asserting loss of consortium and other damages.

Other cases with trial dates are pending in the St. Louis, Missouri area and in Kansas City,  Missouri, including one case with more than 80 plaintiffs scheduled for trial March 30 in St. Louis City Court. A hearing was supposed to be held today in that case, Seitz v. Monsanto, but was cancelled.

The Miller firm is one of the primary plaintiffs’ firms in the Roundup litigation and caused a stir last month by canceling a St. Louis trial shortly before opening statements were to begin in order to facilitate settlement talks.

The fact that the Miller firm is pressing ahead with more trials underscores the lack of agreement between Bayer and the attorneys for a pool of plaintiffs that some sources say now numbers above 100,000.

Both the Miller firm and the firm of Weitz & Luxenberg, which have close to 20,000 plaintiffs combined, have been at the forefront of negotiations, sources close to the litigation say.

Certain plaintiffs who have agreed to cancel their trials have secured agreements on specific settlement amounts, sources involved in the litigation said, while other parties are said to be discussing deals that are contingent upon the successful completion of a larger overall settlement of the U.S. litigation.

But a comprehensive settlement to put the Roundup claims to rest for the long term remains challenging, sources said. Settling with the current pool of plaintiffs will not protect Bayer from future litigation over Roundup cancer causation claims.

The Wall Street Journal has called the effort to forge a settlement an “extraordinary challenge.” 

Many Bayer investors are hoping for a resolution no later than Bayer’s annual meeting on April 28 in Bonn, Germany.

Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto in June of 2018 for $63 billion.

The first three trials went badly for Monsanto and Bayer as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal but the company’s share prices has been sharply depressed by the repeated trial losses.

The trials have turned a public spotlight on internal Monsanto record  that showed how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.

“The last thing Bayer wants is another bad headline on the Roundup litigation” said Marine Chriqui, a London-based market analyst. “I think it is really important for them not to be in a difficult situation at the time of the meeting. “

Some industry observers suggest that Bayer may continue to settle each case just before trial for many months as appeals play out.

Lawyers for both sides are currently awaiting a date for oral arguments before the appeals court in the case of Johnson v. Monsanto, which was the first to go to trial in the summer of 2018.

Some of the plaintiffs’ attorneys are contemplating making an appearance in Bonn the week of the shareholders’ meeting if a settlement is not achieved, litigation sources said.

St. Louis Roundup cancer trial “will not resume;” settlement news expected

Print Email Share Tweet

A Roundup cancer trial in St. Louis, Missouri, will not open on Wednesday as expected, a court spokesman said Monday, fueling fresh speculation that a global settlement of tens of thousands of lawsuits brought by cancer victims against the former Monsanto Co. may be near.

St. Louis City Circuit Court Judge Elizabeth Hogan issued the notification Monday afternoon, reversing guidance provided to jurors and media last week that they should plan for opening statements in the case to begin Wednesday.  Broadcasters waiting to air the proceedings of the highly anticipated trial were told to pack up their equipment.

The St. Louis case, titled Wade v. Monsanto, involves four plaintiffs, including one woman whose husband died of non-Hodgkin lymphoma. Opening statements were initially expected Jan. 24, but were postponed  to allow for lawyers for Monsanto’s German owner Bayer AG and lawyers for the plaintiffs to discuss settlement terms.  The court then said the trial would open on Feb. 5.  Now, it is off indefinitely.

The plaintiffs in the Wade case allege that they or their loved ones developed non-Hodgkin lymphoma because of exposure to Monsanto’s glyphosate-based herbicides, including the popular Roundup brand. More than 50,000 people are making similar allegations against the company, and are additionally claiming that Monsanto knew about the risks but failed to warn its customers.

Several trials have been pulled off the docket over the last several weeks as Bayer, which bought Monsanto in 2018, has drawn closer to a global settlement of the litigation. Bayer is looking to pay out roughly $10 billion in total to settle most, if not all, of the claims, according to sources close to the negotiations.

Last week, a California Roundup trial titled Caballero v. Monsanto was officially postponed after more than a week of jury selection activities and the seating of 16 jurors. Sources close to the litigation said settlement terms have now been agreed to in Caballero.

Sources also said the plaintiffs in a Roundup trial scheduled to start February 24th in federal court in San Francisco – Stevick v. Monsanto – are being told their case is unlikely to go forward.

Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings.  Bayer’s lawyers have reportedly negotiated settlement payout for the clients of several large plaintiffs’ firms, but had been unable to reach agreement with two – The Miller Firm of Virginia and Weitz & Luxenberg of New York.

The Miller firm represents the plaintiffs in the Caballero, Wade and Stevick cases. The fact that those cases are now also being postponed or called off indicates Bayer and the Miller firm likely have come to an agreement, or are near one, observers said.

The first three trials went badly for Monsanto and Bayer as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

Reuters reported that Bayer is considering a settlement provision that would bar plaintiffs’ lawyers involved in the litigation from advertising for new clients.

Mediator Ken Feinberg declined to comment. Feinberg was appointed last May by U.S. District Judge Vince Chhabria to facilitate the settlement process. Last month, Feinberg said he was “cautiously optimistic” that a “national all-in” settlement of the U.S. lawsuits was near.

St. Louis Roundup cancer trial reset for Wednesday as California trial called off

Print Email Share Tweet

The drama continues in the closely watched battle between lawyers defending the former Monsanto Co. and those representing thousands of cancer victims who claim exposure to Monsanto’s Roundup herbicide gave them or a family member non-Hodgkin lymphoma.

On Friday, a California trial was officially postponed after more than a week of jury selection activities and the seating of 16 jurors. Instead of proceeding with opening statements, that trial has now been postponed indefinitely, with a case management conference set for March 31.

Meanwhile, the multi-plaintiff trial that was postponed just before opening statements last week in St. Louis has been rescheduled to open next Wednesday, sources close to the litigation said.

The St. Louis trial is particularly problematic for Monsanto because it involves four plaintiffs, including one woman whose husband died of non-Hodgkin lymphoma, and because the judge has ruled that the trial can be broadcast over the Courtroom View Network and through feeds to television and radio stations. Lawyers for Monsanto’s German owner Bayer AG argued against broadcasting the trial, saying the publicity endangers its executives and witnesses.

Several trials have been pulled off the docket over the last several weeks as Bayer, which bought Monsanto in 2018, has drawn closer to a global settlement of what amounts to well more than 50,000 claims – some estimates are more than 100,000. Bayer is looking to pay out roughly $10 billion in total to settle the claims, according to sources close to the negotiations.

The lawsuits all allege that the Monsanto was well aware of scientific research demonstrating there were human health risks tied to its glyphosate-based herbicides but did nothing to warn consumers, working instead to manipulate the scientific record to protect company sales.

Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings.  Bayer’s lawyers have reportedly negotiated settlement payout for the clients of several large firms, but have been unable to reach agreement with two large plaintiffs’ firms – The Miller Firm of Virginia and Weitz & Luxenberg of New York.  The Miller firm represents the plaintiffs in both the California case just pulled from the docket and in the St. Louis case just put back on.

Shares rose last week when the St. Louis trial was abruptly postponed as lead attorneys from the two plaintiffs’ firms – Mike Miller and Perry Weitz – left the courthouse just before opening statements were scheduled to begin in order to continue last-minute talks with Bayer attorneys.

The postponement has frustrated onlookers, including the crew from Courtroom View Network, which remained at the courthouse this week awaiting news of when the trial might resume. They were told Friday morning only that the trial would not resume on Monday. They learned later it would resume Wednesday instead.

The first three trials went badly for Monsanto and Bayer as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

Those trials turned a public spotlight on internal Monsanto records  that show how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.