By Jefferey Jaxen

Recent headlines continue to tell the story: Bayer’s Roundup-Cancer Settlement Plan Hits Snag writes Bloomberg. Bayer’s Roundup Settlement Comes Up Short states the Wall Street Journal

It was widely reported in late June that Bayer AG reached a “$10.1 billion to $10.9 billion” deal to settle its current and future cancer litigation, according to the company. Over the last three years, the plaintiff pool alleging that Bayer’s (previously Monsanto) glyphosate-based herbicide, RoundUp, caused their non-Hodgkin lymphoma has surpassed 100,000 people. 

Throughout the past three years of high-profile legal losses, Bayer has unsuccessfully defended the science underpinning its product, the product’s safety and the company’s failure to warn consumers of known dangers. 

As shareholders revolt, the company’s reputation and financials take continuous hits, and a title wave of future litigation is eminent, Bayer struck an agreement. 

U.S. Right To Know’s, Carey Gillam, reported on June 24, “…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’s 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.”

The second part of the settlement aims to set up a “neutral, independent” class science panel to manage the remainder of the cases and any future glyphosate-cancer litigation cases brought against the company. 

The proposed panel would comprise of five scientists; two of Bayer’s choosing and two of the lawyer’s choosing, with the fifth being chosen by the four panel members.  

Lawyers from the previous wins against Bayer voiced their intention of challenging the proposed science panel. Judge Chhabria expressed his concerns in an order. He questioned the Constitutionality of depriving plaintiffs of a jury trial and leaving their fate up to scientists. 

Judge Chhabria said there would be difficulty lumping all Roundup users who will get cancer together in one class in the future, then went further hitting at a deeper truth resonating beyond just glyphosate litigation: 

In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases?” 

In other words, science isn’t settled…theoretically or legally.  

Bayer AG’s woes are not just isolated to legal issues and litigation battles.   

In 2019, ABC News reported that Mexico’s environmental department blocked a 1,000-ton shipment of glyphosate into the country: “Glyphosate represents a high environmental risk, given the credible presumption that its use can cause serious environmental damage and irreversible health damage.”

June 25th of this year, shortly after Bayer struck its $10B deal to settle its glyphosate litigation, Mexico went one step further. Joining Thailand and Germany, the country’s Secretariat of Environment and Natural Resources (SEMARNAT) within Mexico’s Environment Ministry announced that glyphosate-based herbicides will be phased out of use in the country by 2024 to protect human health and the environment. 

Given the scientific evidence of glyphosate toxicity, demonstrating the impacts on human health and the environment, the Secretariat of Environment and Natural Resources has taken important steps to gradually reduce the use of this chemical until it achieves a total ban in 2024.”

Meanwhile, The Detox Project is reporting Canada’s largest agribusiness, Richardson International, will no longer accept oat crops that have been pre-harvest sprayed with glyphosate, or any other chemical desiccants, starting as of January 2021.

As many countries were jumping off the glyphosate train, Bayer AG was pushing another toxic product through in the shadows.  Late in Monsanto’s existence, they requested the U.S. Environmental Protection Agency (EPA) approve its decades-old dicamba herbicide for use on genetically engineered soybeans and cotton. The EPA granted approval. 

As a possible replacement for glyphosate, and with an EPA green light, Bayer AG followed Monsanto’s playbook, making plans for a nearly $1B plant expansion in Louisiana tied to dicamba, set to open in 2021. 

Yet an unforeseen appellate court ruling recently laid waste to their plans. On June 3rd, the 9th U.S. Circuit Court of Appeals outlawed the nationwide use of the herbicide dicamba. The EPA had failed to properly account for and understand the danger of dicamba when it extended approval in 2018, ruled the court. The decision vacates the EPA’s approval.

Bayer AG moved immediately as it was forced to abandon its plant expansion to “preserve cash,” according to a statement released by the company.

In a Bloomberg opinion piece, Chris Hughes opens with this succinct paragraph:

“Bayer AG’s attempts at shutting down the litigation around its Roundup weed-killer are faltering. Maybe the German life sciences group will never be able to achieve a convincing degree of closure on this issue. If so, it would need to work out how it can function as a business against a backdrop of ongoing legal battles.”

Perhaps the best Bayer’s going to get is to exist in the world Hughes paints in his article. However, with the recent turn of events, it appears that Bayer’s efforts to throw money at their problem has only served to nullify the first wave of poor health conditions they created.

The next wave of people seeking remedies may not be so easily persuaded to accept settlements, or omit their legal rights to a jury trial. And with dicamba seemingly out of the US picture, the company is once again in further, uncharted territories. Stay tuned.