The US solicitor general, representing the federal government before the US Supreme Court, has expressed support for Bayer subsidiary Monsanto in its attempts to safeguard against a multitude of lawsuits alleging that its glyphosate-based herbicide Roundup leads to cancer.
John Sauer, who has held the position of US solicitor general since April, submitted a brief earlier this month backing Monsanto’s request for a decision on whether federal law supersedes claims under state laws asserting that the company neglected to inform users about Roundup’s cancer hazards.
The matter involves a lawsuit in which a Missouri jury last year mandated Monsanto to pay the plaintiff $1.25 million (£725,000) because the labels on Roundup products did not sufficiently warn about possible cancer risks linked to the active ingredient, glyphosate.
The World Health Organisation’s International Agency for Research on Cancer has identified glyphosate as a likely human carcinogen. However, in 2020, the US Environmental Protection Agency’s (EPA) risk evaluation concluded that glyphosate is unlikely to cause cancer in humans when used as intended.
Monsanto contends that the US Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) supersedes state law failure-to-warn claims.
In his latest brief, Sauer asserts that the US ‘has re-evaluated the arguments’ and has reverted to its earlier stance regarding the extent of the FIFRA pre-emption. ‘EPA’s approval of Roundup labels devoid of a cancer warning, together with an EPA regulation that prevents [Monsanto] from adding such a warning without agency approval, pre-empts [the] failure-to-warn claim,’ he wrote.
In summary, Sauer claims that FIFRA overrides any statutory or common law rule that would demand a labeling requirement diverging from those outlined in FIFRA.
Bayer has expressed its appreciation for Sauer’s endorsement. ‘A favorable ruling on the central, overarching pre-emption issue could assist in moving the company closer to resolving tens of thousands of Roundup cases, which predominantly rely on claims based on failure-to-warn theories,’ the company remarked. The Supreme Court has not officially consented to hear the case, though the request is currently under consideration.
Environmental groups have criticized the brief. ‘It’s shocking – albeit unfortunately expected – that the Trump administration opted to ally with Bayer over the cancer patients who believed Roundup was safe,’ commented Ken Cook, president of the non-profit Environmental Working Group in Washington, DC.
Safety study retracted
In the meantime, a crucial and long-standing safety study concluding that Roundup does not represent a health risk to humans was retracted in late November.
The retraction was requested by Martin van den Berg, a co-editor-in-chief of the journal Regulatory Toxicology and Pharmacology where the article was first published in 2000. It cited ‘numerous significant issues that are deemed to compromise the academic integrity of this article and its conclusions,’ including ‘the apparent involvement of Monsanto employees as co-writers of this article’ without acknowledging them as coauthors and the study’s exclusive reliance on unpublished research from Monsanto.
As of mid-October, Bayer estimated that approximately 65,000 lawsuits concerning Roundup’s alleged cancer risk were ongoing in the US.