U.S. regulators relied for years on flawed pesticide data provided by Dow Chemical

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For years, U.S. regulators relied on falsified data provided by Dow Chemical to allow unsafe levels of the chemical chlorpyrifos into American homes, according to a new analysis from University of Washington researchers.

The analysis reexamines work from the 1970s sponsored by Dow and submitted to the Environmental Protection Agency (EPA) to guide the agency in establishing what scientists refer to as a “no-observed-adverse-effect-level” or NOAEL. Such thresholds are used to determine what types of use and at what level a chemical exposure can be allowed and still be considered “safe.”

According to the new analysis, published online July 3 in the journal Environmental International, the inaccurate findings were the result of a chlorpyrifos dosing study conducted by researcher Frederick Coulston and colleagues from the Albany Medical College in the early 1970s for Dow.

The authors of the new paper reexamining that prior work are Lianne Sheppard, Seth McGrew and Richard Fenske of the Department of Environmental and Occupational Health Sciences, School of Public Health at the University of Washington.

While the study was authored by the Coulston group, the analysis was completed by a Dow statistician and concluded that 0.03 mg/kg-day was the chronic NOAEL level for chlorpyrifos in humans. But the new analysis by the University of Washington researchers found that wildly overstated the margin of safety. Had the data been properly analyzed a lower NOAEL of 0.014 mg/kg-day would have been found, they said.

The Coulston study did not undergo peer review but still was used by the EPA for risk assessments throughout much of the 1980′s and 1990′s, the University of Washington researchers reported.

The researchers concluded: “During that period, EPA allowed chlorpyrifos to be registered for multiple residential uses that were later cancelled to reduce potential health impacts to children and infants. Had appropriate analyses been employed in the evaluation of this study, it is likely that many of those registered uses of chlorpyrifos would not have been authorized by EPA. This work demonstrates that reliance by pesticide regulators on research results that have not been properly peer-reviewed may needlessly endanger the public.”

Widely used

Commonly known as the active ingredient in the brand name Lorsban, chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings. The largest agricultural market for chlorpyrifos is corn but the pesticide is also used by farmers growing soybeans, fruit and nut trees, Brussels sprouts, cranberries, and cauliflower, as well as other row crops. Residues of the chemical are commonly found in food. Non-agricultural uses include golf courses, turf, green houses, and utilities.

Despite the science promoted by Dow, independent scientific research has shown mounting evidence of the dangers of chlorpyrifos, particularly to young children. Scientists have found that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development.

The American Academy for Pediatrics, which represents more than 66,000 pediatricians and pediatric surgeons, has warned that continued use of the chemical puts developing fetuses, infants, children and pregnant women at great risk.

Chlorpyrifos is so dangerous that the European Food Safety Authority has stated that there is no safe exposure level.

The EPA reached an agreement with Dow in 2000 to phase out all residential uses of the chemical because of research showing the chemical is dangerous to the developing brains of babies and young children. In 2012, chlorpyrifos was banned from use around schools.

In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience, a successor corporation to a merger of Dow and DuPont, said it would phase out production of chlorpyrifos. The chemical, however, remains legal for other companies to make and sell.

Human subjects

The study that is the subject of the new paper by the University of Washington researchers was overseen in 1971 by the Albany Medical College’s Institute of Experimental Pathology and Toxicology. The study included 16 healthy adult male inmates from a pool of volunteers at Clinton Correctional Facility, a maximum-security prison in Dannemora, New York.

The volunteers were randomized into four experimental groups, including one control group, whose members received a daily placebo. The members of the three other groups received daily chlorpyrifos treatments at three different doses.  The study took place over 63 days.

The new analysis found several problems with the study, including the omission of eight valid baseline measurements for one of the three treatment groups.

“Such an omission of valid data without justification is a form of data falsification that violates all standard codes of ethical research practice and is classified as outright research misconduct,” the University of Washington researchers concluded.

The researchers said that chlorpyrifos “passed through the regulatory process without much debate,” even though there was “growing evidence that it might pose a health hazard in residential environments.”

“The Coulston Study misled regulators by omitting valid data,” and “may have adversely impacted public health” for several years, the University of Washington paper concludes.

U.S. regulators relied for years on flawed pesticide data provided by Dow Chemical

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For years, U.S. regulators relied on falsified data provided by Dow Chemical to allow unsafe levels of the chemical chlorpyrifos into American homes, according to a new analysis from University of Washington researchers.

The analysis reexamines work from the 1970s sponsored by Dow and submitted to the Environmental Protection Agency (EPA) to guide the agency in establishing what scientists refer to as a “no-observed-adverse-effect-level” or NOAEL. Such thresholds are used to determine what types of use and at what level a chemical exposure can be allowed and still be considered “safe.”

According to the new analysis, published online July 3 in the journal Environmental International, the inaccurate findings were the result of a chlorpyrifos dosing study conducted by researcher Frederick Coulston and colleagues from the Albany Medical College in the early 1970s for Dow.

The authors of the new paper reexamining that prior work are Lianne Sheppard, Seth McGrew and Richard Fenske of the Department of Environmental and Occupational Health Sciences, School of Public Health at the University of Washington.

While the study was authored by the Coulston group, the analysis was completed by a Dow statistician and concluded that 0.03 mg/kg-day was the chronic NOAEL level for chlorpyrifos in humans. But the new analysis by the University of Washington researchers found that wildly overstated the margin of safety. Had the data been properly analyzed a lower NOAEL of 0.014 mg/kg-day would have been found, they said.

The Coulston study did not undergo peer review but still was used by the EPA for risk assessments throughout much of the 1980′s and 1990′s, the University of Washington researchers reported.

The researchers concluded: “During that period, EPA allowed chlorpyrifos to be registered for multiple residential uses that were later cancelled to reduce potential health impacts to children and infants. Had appropriate analyses been employed in the evaluation of this study, it is likely that many of those registered uses of chlorpyrifos would not have been authorized by EPA. This work demonstrates that reliance by pesticide regulators on research results that have not been properly peer-reviewed may needlessly endanger the public.”

Widely used

Commonly known as the active ingredient in the brand name Lorsban, chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings. The largest agricultural market for chlorpyrifos is corn but the pesticide is also used by farmers growing soybeans, fruit and nut trees, Brussels sprouts, cranberries, and cauliflower, as well as other row crops. Residues of the chemical are commonly found in food. Non-agricultural uses include golf courses, turf, green houses, and utilities.

Despite the science promoted by Dow, independent scientific research has shown mounting evidence of the dangers of chlorpyrifos, particularly to young children. Scientists have found that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development.

The American Academy for Pediatrics, which represents more than 66,000 pediatricians and pediatric surgeons, has warned that continued use of the chemical puts developing fetuses, infants, children and pregnant women at great risk.

Chlorpyrifos is so dangerous that the European Food Safety Authority has stated that there is no safe exposure level.

The EPA reached an agreement with Dow in 2000 to phase out all residential uses of the chemical because of research showing the chemical is dangerous to the developing brains of babies and young children. In 2012, chlorpyrifos was banned from use around schools.

In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience, a successor corporation to a merger of Dow and DuPont, said it would phase out production of chlorpyrifos. The chemical, however, remains legal for other companies to make and sell.

Human subjects

The study that is the subject of the new paper by the University of Washington researchers was overseen in 1971 by the Albany Medical College’s Institute of Experimental Pathology and Toxicology. The study included 16 healthy adult male inmates from a pool of volunteers at Clinton Correctional Facility, a maximum-security prison in Dannemora, New York.

The volunteers were randomized into four experimental groups, including one control group, whose members received a daily placebo. The members of the three other groups received daily chlorpyrifos treatments at three different doses.  The study took place over 63 days.

The new analysis found several problems with the study, including the omission of eight valid baseline measurements for one of the three treatment groups.

“Such an omission of valid data without justification is a form of data falsification that violates all standard codes of ethical research practice and is classified as outright research misconduct,” the University of Washington researchers concluded.

The researchers said that chlorpyrifos “passed through the regulatory process without much debate,” even though there was “growing evidence that it might pose a health hazard in residential environments.”

“The Coulston Study misled regulators by omitting valid data,” and “may have adversely impacted public health” for several years, the University of Washington paper concludes.

Challenge eyed to class action plan for Bayer Roundup settlement

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A plan to delay any new Roundup cancer claims for years and shift the key question of whether or not the weed killer causes cancer from a jury to a hand-picked panel of scientists faces potential opposition from some of the plaintiffs’ attorneys who initiated and led the mass tort claims against Roundup maker Monsanto, sources close to the litigation said.

Several members of the lead law firms who won three out of three trials pitting cancer patients against Monsanto are considering challenging the terms of a proposed “class action” settlement negotiated between Monsanto owner Bayer AG and a small team of  lawyers who have not previously been at the forefront of the Roundup litigation, the sources said.

The class action settlement proposal is an element of the sweeping $10 billion Roundup litigation settlement Bayer announced June 24.

In each of the trials held to date, juries found that the weight of scientific evidence proved that Roundup exposure caused the plaintiffs to develop non-Hodgkin lymphoma (NHL) and that Monsanto covered up the risks. But under the proposal that question would go to a five-member “science panel,” not a jury.

“It’s basically depriving a plaintiff of their constitutional right to a jury trial,” said one source close to the litigation.

The proposed class settlement would apply to anyone exposed to Roundup who had not filed a lawsuit or retained a lawyer as of June 24, 2020, regardless of whether or not that person already had been diagnosed with cancer they believe was due to Roundup exposure.

The plan was put together by Bayer and the law firms of Lieff Cabraser Heimann & Bernstein; Audet & Partners; The Dugan Law Firm; and lawyer Samuel Issacharoff, Reiss Professor of Constitutional Law at New York University School of Law.

The agreement was reached after nearly one year of “unrelenting efforts” of negotiations, lawyer Elizabeth Cabraser said in a declaration to the court supporting the proposed class settlement.

It would set a “standstill period” in which plaintiffs in the class cannot file new litigation related to Roundup. And it calls for class members to release “any claims against Monsanto for punitive damages and for medical monitoring related to Roundup exposure and NHL.”

Notably, the plan states that rather than go forward with another jury trial, a panel of scientists will first be set up to determine the “right answer” to “the threshold question” of whether or not there is a causal link between Roundup and NHL.

The plan calls for Bayer to pay up to $150 million for the fees and costs of the attorneys’ involved and “class representative service awards” up to $25,000 to each or a total of $100,000.

Overall, Bayer said it would set aside $1.25 billion for the arrangement. The money would be used to compensate class members diagnosed with NHL for the “effects of the delay” in litigation, and to fund research into the diagnosis and treatment of NHL, among other things.

A motion seeking preliminary approval of the class settlement was filed Wednesday with the U.S. District Court for the Northern District of California to be handled by Judge Vince Chhabria. Chhabria has been overseeing numerous Roundup lawsuits that have been bundled together as multidistrict litigation. In shepherding a large number of the lawsuits already filed, Chhabria oversaw one of the Roundup trials, as well as what is known as a “Daubert” hearing, in which he heard days of scientific testimony from both sides and then decided there was sufficient scientific evidence of causation for the litigation to proceed.

The class settlement proposal was negotiated separately from the main settlement made with the lead law firms.

In the main settlement, Bayer agreed to provide $8.8 billion to $9.6 billion to resolve roughly 75 percent of the roughly 125,000 filed and unfiled claims brought by plaintiffs who blame exposure to Monsanto’s Roundup for their development of non-Hodgkin lymphoma.  Lawyers representing more than 20,000 additional plaintiffs say they have not agreed to settle with Bayer and those lawsuits are expected to continue to work their way through the court system.

Even though Monsanto lost each of the three trials held to date, Bayer maintain the jury decisions were flawed and based on emotion and not sound science.

Science Panel Selection

Bayer and the lawyers for the proposed class would work together to select the five scientists to sit on what would be a “neutral, independent” panel, according to the plan.  If they cannot agree on the make-up of the panel then each side will choose two members and those four members will choose the fifth.

No scientist who acted as an expert in the federal multidistrict Roundup litigation will be allowed to be on the panel. Notably, neither will anyone who “communicated with any expert” in the litigation about the subject matter.

The panel would have four years to review scientific evidence but can petition for an extension of time if necessary. The determination would be binding on both sides, the plan states. If the panel determines there is a causal link between Roundup and NHL, plaintiffs can go forward to seek trials of their individual claims.

“Knowledge is power and this Settlement empowers class members to hold Monsanto accountable for their injuries if and when the Science Panel determines that general causation is satisfied,” the plan states.

The filing with the federal court requests a preliminary approval hearing within 30 days.

Bayer settles U.S. Roundup, dicamba and PCB litigation for more than $10 billion

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In an expensive clean-up of Monsanto litigation messes, Bayer AG said Wednesday that it will pay out more than $10 billion to settle tens of thousands of U.S. claims brought against Monsanto over its Roundup herbicide, as well as $400 million to resolve lawsuits over Monsanto’s dicamba herbicide and $650 million for PCB pollution claims.

The resolutions come two years after Bayer bought Monsanto for $63 billion and almost immediately saw share prices plummet due to the Roundup liability.

Bayer announced that it will pay $10.1 billion to $10.9 billion total to resolve roughly 75 percent of the claims by an estimated 125,000 people who allege exposure to Monsanto’s Roundup weed killers caused them to develop non-Hodgkin lymphoma. The deal includes plaintiffs who have retained attorneys with the intent to sue but whose cases have not yet been filed, Bayer said.  Within that total, a payment of $8.8 billion to $9.6 billion will resolve the current litigation and $1.25 billion is being set aside to support potential future litigation, the company said.

The plaintiffs included in the settlement are those signed with the law firms that have been leading the Roundup federal multi-district litigation (MDL) and include The Miller Firm of Virginia, the Baum Hedlund Aristei & Goldman firm of Los Angeles and the Andrus Wagstaff firm of Denver, Colorado.

“After years of hard fought litigation and a year of intense mediation I am glad to see our clients will now be compensated,” said Mike Miller, of the Miller law firm.

The Miller firm and the Baum Hedlund firm worked together to win the first case to go to trial, that of California groundskeeper Anthony “Lee” Johnson. Andrus Wagstaff won the second trial and The Miller Firm won the third case to go to trial. In all, the three trials resulted in jury verdicts totaling more than $2.3 billion, though the trial judges in each case lowered the verdicts.

The juries in all three trials found that Monsanto’s glyphosate herbicides, such as Roundup, caused non-Hodgkin lymphoma and that Monsanto covered up the risks and failed to warns users.

Each of the three trial verdicts are going through the appeals process now and Bayer said the plaintiffs in those cases are not included in the settlement.

Bayer said future Roundup claims will be part of a class agreement subject to approval by Judge Vince Chhabria of the U.S. District Court for the Northern District of California, who ordered the year-long mediation process that led to the settlement.

The agreement would take any future findings on cancer claims out of the hands of  juries, Bayer said. Instead, there will be the creation of an independent “Class Science Panel.” The Class Science Panel will determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Both the plaintiffs in the class action and Bayer will be bound by the Class Science Panel’s determination.  If the Class Science Panel determines there is no causal connection between Roundup and non-Hodgkin lymphoma then the class members will be barred from claiming otherwise in any future litigation against Bayer.

Bayer said the Class Science Panel’s determination is expected to take several years and class members will not be permitted to proceed with Roundup claims prior to that determination. They also cannot seek punitive damages, Bayer said.

“The Roundup™ agreements are designed as a constructive and reasonable resolution to a unique litigation,” said Kenneth R. Feinberg, the court-appointed mediator for the settlement talks.

Even as they announced the settlement, Bayer officials continued to deny Monsanto’s glyphosate herbicides cause cancer.

“The extensive body of science indicates that Roundup does not cause cancer, and therefore, is not responsible for the illnesses alleged in this litigation,” Bayer CEO Werner Baumann said in a statement.

Dicamba Deal

Bayer also announced a mass tort agreement to settle U.S. dicamba drift litigation, which involves claims from farmers that use of dicamba herbicides developed by Monsanto and BASF to be sprayed over dicamba-tolerant crops developed by Monsanto caused widespread crop loss and injury.

In a trial earlier this year, Monsanto was ordered to pay $265 million to a Missouri peach farmer for dicamba drift damage to his orchard.

More than 100 other farmers have made similar legal claims. Bayer said it will pay up to a total of $400 million to resolve the multi-district dicamba litigation that is pending in the U.S. District Court for the Eastern District of Missouri, with claims for the 2015-2020 crop years. Claimants will be required to provide proof of damage to crop yields and evidence that it was due to dicamba in order to collect. The company expects a contribution from its co-defendant, BASF, towards this settlement.

The settlement will provide “much-needed resources for farmers” who have suffered crop losses due to drifting dicamba herbicides, said lawyer Joseph Peiffer of the Peiffer Wolf law firm, which represents farmers with dicamba claims.

“The settlement announced today is an important step to making things right for the farmers who just want to be able to put food on the table of America and the world,” Peiffer said.

Earlier this month a federal court ruled that the Environmental Protection Agency had violated the law when it approved dicamba herbicides made by Monsanto, BASF and Corteva Agriscience. The court found the EPA ignored the risks of dicamba damage.

PCB Pollution Settlement 

Bayer also announced a series of agreements that resolve cases the company said represent most of its  exposure to litigation involving water contamination by PCBs, which Monsanto manufactured until  1977. One agreement establishes a class that includes all local governments with EPA permits involving water discharges impaired by PCBs. Bayer said it will pay a total of approximately $650 million to the class, which will be subject to court approval.

Additionally, Bayer said it has entered into separate agreements with the Attorneys-General of New Mexico, Washington, and the District of Columbia to resolve PCB claims. For these agreements, which are separate from the class, Bayer will make payments totally approximately $170 million.

Bayer said the potential cash outflow will not exceed $5 billion in 2020 and $5 billion in 2021 with the remaining balance to be paid in 2022 or later.

Roundup cancer plaintiffs eagerly await settlement news

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Thousands of cancer patients and their families around the United States were notified this week that a comprehensive settlement of their claims against the former Monsanto Co. should be announced before the end of the month.

Though specific settlement amounts for specific plaintiffs are still to be determined, groups of plaintiffs have been told to expect details of a sweeping financial deal to be publicly announced before a June 30 deadline set for completing the year-long negotiations. All allege they developed non-Hodgkin lymphoma after exposure to Monsanto’s glyphosate-based herbicides, such as Roundup. They additionally allege that the company knew of scientific evidence showing cancer risks associated with its products, but worked to suppress the information to protect its profits.

Lawyers for Monsanto owner Bayer AG and lawyers representing more than 50,000 of the plaintiffs have been engaged in contentious, start-and-stop discussions about a settlement for several months, frustrating families who are struggling financially and emotionally with the strains of fighting cancer.

Many plaintiffs have lost jobs and homes as they deal with costly cancer treatments and some have died while waiting for their cases to be resolved, court records show. Notification of the death of one such plaintiff was made to the federal court in San Francisco on June 1.

Many of the lead law firms with large caseloads have agreed to the terms of a deal that calls for $8 billion-$10 billion to be paid by Bayer in exchange for an agreement that those firms will not file new cancer claims against the company, according to sources close to the litigation.

The amount of money each plaintiff gets will depend upon several factors. The settlements are expected to be structured so they will be tax-free for the plaintiffs.

Some law firms with Roundup plaintiffs have yet to finalize a deal, and settlement meetings were still being held last week, including with the Louisiana-based firm of Pendley, Baudin & Coffin, according to sources close to the litigation.

Bayer spokesman Chris Loder would not confirm the timing or terms of any announcement, saying only that the company had made progress in the negotiations but would “not speculate about settlement outcomes or timing.”

He said any resolution has to be “financially reasonable” and provide “a process to resolve potential future litigation.”

Bayer, which bought Monsanto in June of 2018, has been seeking to put an end to the 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 Monsanto and jury awards of more than $2 billion, though trial judges later sharply reduced the awards. Monsanto appealed each of the three losses and is now awaiting an appellate ruling on the first case – Johnson v. Monsanto – after a June 2 oral argument. 

Despite the settlement talks, court proceedings have been continuing on multiple cases. A flurry of lawsuits were recently transferred from state courts into the federal multidistrict Roundup litigation in the U.S. District Court for the Northern District of California in San Francisco. And lawyers for Bayer have been busily filing their answers to the lawsuits.

In the city of St. Louis, Mo., Monsanto’s longtime home-town, the case of Timothy Kane v. Monsanto has a status hearing set for June 15 and a jury trial set to start June 29.  And though it appears very unlikely the case will proceed, on Wednesday lawyers for the chemical giant filed a motion seeking to exclude testimony of one of the witnesses for the plaintiffs.

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EPA thumbs nose at court order, says farmers can still use illegal dicamba herbicides

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(UPDATES with comment from BASF)

The Environmental Protection Agency on Monday declared it would not immediately honor a court ruling handed down last week that banned certain herbicides made by three of the world’s largest chemical companies.

The move by the EPA amounts to a generous gift to BASF, Bayer and Corteva Agrisciences whose dicamba herbicides were deemed by the court to have been approved by the EPA illegally. The court specifically said in its order issued last week that it wanted no delay in vacating those approvals. The court cited damage done by dicamba use in past summers to millions of acres of crops, orchards and vegetable plots across U.S. farm country.

But the EPA announced Monday that it was issuing a “cancellation order” that would give farmers until July 31 to use existing stocks of Bayer’s Xtendimax, BASF’s Engenia, and Corteva’s FeXapan.

The ruling by the U.S. Court of Appeals for the Ninth Circuit found that the EPA made multiple errors in approving the dicamba products and came in response to a petition brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.

The Center for Food Safety (CFS), whose lawyers argued the case for petitioners, said in a statement that the EPA’s action was “disingenuous” and “ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season.” The EPA action also ignores the risks dicamba poses to hundreds of endangered species, CFS said.

“The Trump administration is again showing it has no regard for the rule of law. All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product. We will bring the EPA’s failure to abide by the Court’s order to the Court as expeditiously as possible,” CFS said.

U.S. Secretary of Agriculture Sonny Perdue last week urged the EPA to figure out a way around the court ruling, echoing comments by Bayer, BASF and Corteva that called dicamba herbicides important “tools” for farmers growing genetically engineered soybean and cotton.

The EPA said in deciding to allow farmers to continue to use dicamba through the end of July it was responding to “numerous unsolicited phone calls and emails” telling the agency “there is a real concern and potential for devastation to cotton and soybean crops that could result in a crisis for the industry.”

The EPA did not acknowledge the scores of farmers growing crops other than dicamba-tolerant soybeans and cotton who have suffered crop losses from dicamba drift and fear another summer of crop damage.

Farmers have been using dicamba herbicides for more than 50 years but traditionally avoided applying the herbicide during hot summer months, and rarely if ever over large swaths of land due to the well-known propensity of the chemical to drift far from intended target areas where it could damage crops, gardens, orchards, and shrubs.

Monsanto, which was bought by Bayer in 2018, upended that restraint when it launched dicamba-tolerant soybean and cotton seeds a few years ago, encouraging farmers to spray new formulations of dicamba “over the top” of these genetically engineered crops during warm-weather growing months.

Monsanto’s move to create the dicamba-tolerant crops came after its glyphosate-tolerant crops and widespread spraying of glyphosate created an epidemic of weed resistance across U.S. farmland.

Farmers, agricultural scientists and other experts warned Monsanto and the EPA that introducing a dicamba-tolerant system would not only create more herbicide resistance but would lead to devastating damage to crops that are not genetically engineered to tolerate dicamba.

The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do. But those assurances were proven false amid widespread complaints of dicamba drift damage in recent years. More than one million acres of dicamba crop damage was reported last year in 18 states, the court noted.

In February, a unanimous jury awarded a Missouri peach farmer $15 million in compensatory damages and $250 million in punitive damages to be paid by Bayer and BASF for dicamba damage to his property.

In a statement issued after the EPA announcement, BASF  said it supported the EPA’s decision to allow the continued use of existing stocks of BASF’s Engenia herbicide through July 31, but said “additional clarity and flexibility” was required.  The company said it had immediately suspended selling and shipping Engenia herbicide after last week’s ruling. 

The company said it  will continue to pursue re-registration of Engenia with the EPA and is assessing its options to pursue legal remedies to challenge the court order.

UPDATED -Court overturns EPA approval of Bayer dicamba herbicide; says regulator “understated the risks”

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(UPDATES with statement from BASF)

In a stunning rebuke of the Environmental Protection Agency, a federal court on Wednesday overturned the agency’s approval of popular dicamba-based herbicides made by chemical giants Bayer, BASF and Corteva Agrisciences. The ruling effectively makes it illegal for farmers to continue to use the product.

The ruling by the U.S. Court of Appeals for the Ninth Circuit found that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

“The EPA made multiple errors in granting the conditional registrations,” the court ruling states.

Monsanto and the EPA had asked the court, if it did agree with the plaintiffs, not to immediately overturn the approvals of the weed killing products. The court said simply: “We decline to do so.”

The lawsuit was brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.

The plaintiffs accused the EPA of breaking the law in evaluating the impacts of a system designed by Monsanto, which was bought by Bayer in 2018, that has triggered “widespread” crop damage over the last few summers and continues to threaten farms across the country.

“Today’s decision is a massive win for farmers and the environment,” said George Kimbrell of the Center for Food Safety, lead counsel in the case. “It is good to be reminded that corporations like Monsanto and the Trump Administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived.”

The court found that among other problems, the EPA “refused to estimate the amount of dicamba damage, characterizing such damage as ‘potential’ and ‘alleged,’ when record evidence showed that dicamba had caused substantial and undisputed damage.”

The court also found that the EPA failed to acknowledge that restrictions it placed on the use of the dicamba herbicides would not be followed,  and it determined that the EPA “entirely failed to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries.”

Finally, the court said, the EPA entirely failed to acknowledge the risk that the new use of dicamba herbicides set up by Monsanto, BASF and Corteva would “tear the social fabric of farming communities.”

Farmers have been using dicamba herbicides for more than 50 years but traditionally avoided applying the herbicide during hot summer months, and rarely if ever over large swaths of land due to the well-known propensity of the chemical to drift far from intended target areas where it could damage crops, gardens, orchards, and shrubs.

Monsanto upended that restraint when it launched dicamba-tolerant soybean and cotton seeds a few years ago, encouraging farmers to spray new formulations of dicamba “over the top” of these genetically engineered crops during warm-weather growing months.

Monsanto’s move to create genetically engineered dicamba-tolerant crops came after its glyphosate-tolerant crops and widespread spraying of glyphosate created an epidemic of weed resistance across U.S. farmland.

Farmers, agricultural scientists and other experts warned Monsanto and the EPA that introducing a dicamba-tolerant system would not only create more herbicide resistance but would lead to devastating damage to crops that are not genetically engineered to tolerate dicamba.

Despite the warnings, Monsanto, along with BASF and Corteva AgriScience all gained approval from the EPA to market new formulations of dicamba herbicides for this widespread type of spraying. The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do. But those assurances have proven false amid widespread complaints of dicamba drift damage since the introduction of the new dicamba-tolerant crops and the new dicamba herbicides. More than one million acres of crop damage was reported last year in 18 states, the court noted.

As predicted, there have been thousands of dicamba damage complaints recorded in multiple states. In its ruling, the court noted that in 2018, out of 103 million acres of soybeans and cotton planted in the United States, about 56 million acres were planted with seeds with Monsanto’s dicamba-tolerance trait, up from 27 million acres the year before in 2017.

In February, a unanimous jury awarded a Missouri peach farmer $15 million in compensatory damages and $250 million in punitive damages to be paid by Bayer and BASF for dicamba damage to his property.

Bayer issued a statement following the ruling saying it strongly disagreed with the court ruling and was assessing its options.

“The EPA’s informed science-based decision reaffirms that this tool is vital for growers and does not pose any unreasonable risks of off-target movement when used according to label directions,” the company said. “If the ruling stands, we will work quickly to minimize any impact on our customers this season.”

Corteva also said its dicamba herbicides were needed farmer tools and that it was assessing its options.

BASF called the court order “unprecedented” and said it “has the potential to be devastating to tens of thousands of farmers.”

Farmers could lose “significant revenue” if they are not able to kill weeds in their soybean and cotton fields with the dicamba herbicides, the company said.

“We will use all legal remedies available to challenge this Order,” BASF said.

An EPA spokesman said the agency was currently reviewing the court decision and “will move promptly to address the Court’s directive.”

The court acknowledged the decision could be costly for farmers who have already purchased and/or planted dicamba-tolerant seeds for this season and planned to use the dicamba herbicides on them because the ruling disallows that herbicide use.

“We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their (dicamba-tolerant) crops…” the ruling states. “They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

Fresh talk of a settlement between Bayer and Roundup cancer patients

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There was renewed talk of a potential settlement this week between Bayer AG and tens of thousands of cancer patients as a key court hearing looms next week.

According to a report in Bloomberg, lawyers for Bayer have reached verbal agreements with U.S. lawyers representing at least 50,000 plaintiffs who are suing Monsanto over claims that Roundup and other Monsanto herbicides caused the plaintiffs to develop non-Hodgkin lymphoma.

The details as reported by Bloomberg appear to be mostly unchanged from prior verbal agreements between Bayer and plaintiffs’ attorneys that fell apart during the Coronavirus-related courthouse closings. With the courthouses still closed, trial dates have been postponed, taking the pressure off Bayer.

But a new pressure point looms with next week’s hearing in the appeal of the first Roundup cancer trial. The California Court of Appeal First Appellate District is set to hear oral arguments on cross-appeals in the case of Johnson v Monsanto  on June 2.

That case, which pitted California groundskeeper Dewayne “Lee” Johnson against Monsanto, resulted in a $289 million damage award for Johnson in August 2018. The jury found not only that Monsanto’s Roundup and related glyphosate-based brands presented a substantial danger to people using them, but that there was “clear and convincing evidence” that Monsanto’s officials acted with “malice or oppression” in failing to adequately warn of the risks.

The trial judge in the Johnson case later lowered the damages to $78.5 million. Monsanto appealed even the reduced award, and Johnson cross-appealed seeking reinstatement of the full jury award.

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. At the very least, 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.

The appeals court judges gave an early hint about how they were leaning on the case, notifying lawyers for the two sides that they should be prepared to discuss the question of damages in the June 2 hearing. Plaintiffs’ attorneys have taken that as an encouraging sign that the judges may not be planning to order a new trial.

Under the terms of the settlement that has been discussed for the last several months, Bayer would pay out a total of $10 billion to bring closure to cases held by several large firms, but would not agree to put warning labels on its glyphosate-based weed killers, as had been demanded by some of the plaintiffs’ attorneys.

The settlement would not cover all of the plaintiffs with pending claims. Nor would it cover Johnson or the other three plaintiffs who already won their claims at trial. Monsanto and Bayer have appealed all the trial losses.

Lawyers at the major firms involved in the litigation declined to discuss the current situation.

Bayer officials have denied there is any scientific evidence linking glyphosate herbicides to cancer, but investors have been pushing for a settlement to resolve the litigation. It would be beneficial to Bayer to settle the cases before any adverse ruling by the appellate court, which could further rattle the company’s shareholders. Bayer bought Monsanto in June of 2018. Following the Johnson trial loss in August 2018, the company’s share price plummeted and has remained under pressure.

Frustrated Plaintiffs

The first lawsuits in the Roundup cancer litigation were filed in late 2015, meaning many plaintiffs have been waiting years for resolution. Some plaintiffs have died while they waited, with their cases now being carried forward by family members frustrated at the lack of progress in bringing cases to a close.

Some plaintiffs have been making video messages directed at Bayer executives, calling for them to agree to settlements and to make changes to warn consumers about potential cancer risks of glyphosate-based herbicides such as Roundup.

Vincent Tricomi, 68, is one such plaintiff. In the video he made, which he shared with US Right to Know, he said he has undergone 12 rounds of chemotherapy and five hospital stays fighting his cancer. After achieving a temporary remission, the cancer recurred earlier this year, he said.

“There are so many like me who are suffering and need relief,” said Tricomi.  Watch his video message below:

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

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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.

A Message from Maine: It’s Time to Get Serious About Sustainability

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As summer turns to fall, the Maine landscape is beautiful to behold. Lush forests stretch as far as the eye can see in a tapestry of green, yellow and crimson-colored leaves. Every few miles along a narrow roadway, restored wooden barns adjoin modest homes set on tidy acres where farm families coax food from the soil and tend to livestock.

I was fortunate to visit this northeastern farm state recently, spending time at the “Common Ground Country Fair” in Unity, Maine. Only about 2,000 people live in the tiny town, but an estimated 57,000 people jammed the single-lane roads to swarm this year’s three-day event in late September.

The fair was part celebration and part education – a festival of first-hand knowledge about how to produce food in ways that focus on enhancing, not endangering, human and environmental health. Young and old gathered in yellow-and-white striped tents to discuss such topics as the marketing of organic lowbush wild blueberries, how to develop “micro-dairies,” and science that shows healthy, chemical-free soils can better sequester carbon from the atmosphere as a mitigant to the climate crisis.

In a jangly parade running through the middle of the fairgrounds, children and adults dressed as honeybees, fresh vegetables, sunflowers and trees and carried colorful signs calling for protections from the threats posed by industrial agriculture. One small child carried a sign that read “No sprays on me.”

The messages carried through that parade and across the fairgrounds speak to the fact that alongside this jovial festival of food and farming are mounting concerns about a lack of leadership in Washington and federal promotion of the permissive use of synthetic fertilizers and pesticides in farming; as well as the monoculture cropping practices that have become a mainstay of U.S. agriculture and are stripping away essential biodiversity.

This week, a group of state leaders cut the ribbon on a project to help address those concerns by promoting sustainable solutions in Maine that they intend as an example for the rest of the nation to follow.

The Maine Harvest Federal Credit Union opened its doors Oct. 8 as the first U.S. member-owned financial institution focused solely on funding small farms and food businesses that engage in sustainable agricultural practices. The credit union aims to provide financing for endeavors that improve access to fresh, locally grown food and are environmentally protective. With roughly 40 percent of the state’s 7,600 farms run by men and women under the age of 40, there is an appetite for progressive strategies to improve food production systems, supporters say.

“We are not there to finance commodity agriculture. We are organized to serve a re-vitalized and re-localized food economy,” co-founder Sam May told me. “The modern food system has it all wrong. It is killing the planet, the soil, our personal health and putting our civilization at risk. We are doing what we are doing in Maine because it needs to be done and we can do it.”

The credit union founders, former veterans of Wall Street, have raised $2.4 million in capital that includes a $300,000 conservation innovation grant from the U.S. Department of Agriculture.  The founders have garnered the support of the state’s U.S. congressional delegation, including Republican U.S. Sen. Susan Collins.

U.S. Rep. Chellie Pingree, a Democrat from Maine, emphasized the need for more of this type of support: “Our food economy is growing rapidly and financial support will be a big part of that continued growth going forward. I’m so pleased to see this first-in-the-country credit union that will support the unique needs of small farms and food businesses. I hope other states take note and help to close the gap between farmers and their financial institutions,” she said in a statement.

The work is not just admirable but urgent. In addition to scientific reports linking industrial agriculture and agrochemicals to water pollution, sterile soils, human diseases and reproductive problems, recently released research shows additional links to sharp declines in important bird and insect populations.

But rather than heed the warnings, the Trump Administration is racing to rollback regulatory protections at a rapid rate.

It seems fitting that it was here in Maine, more than 50 years ago, where author Rachel Carson kept a cottage and would sometimes retreat as she wrote about the dire consequences of a world awash in chemicals, a world where nature is sacrificed, and the sounds of song birds going silent.

To visit a country fair in the fall in Maine is to see what that long-ago call for action from Carson looks like in modern form. These are people who recognize that they must protect and build upon systems that sustain and nourish, not systems that destroy. These are people who hope their children and grandchildren will always be able to behold a landscape of lush forests and rich farmland as far as the eye can see.

It’s a lesson the rest of the country needs to learn. There is no time to waste.