United States: "Shaky" Science And New Theories Of Glyphosate Liability Pose Significant Risk To Retail Companies

Glyphosate, the world's most widely used herbicide, has dominated headlines over the last year as Monsanto has battled thousands of lawsuits brought by consumers who claim that the chemical causes cancer. Now, other companies in the retail supply chain are beginning to feel pressure as consumer groups and plaintiffs' lawyers turn their attention to other, less obvious targets after early success against Monsanto in both state and federal courts. But as the potential pool of defendants has expanded, so too has the disconnect between the plaintiffs' success in court and the scientific and regulatory landscape, suggesting that reliance on science will do little to mitigate the risk and cost of glyphosate litigation for companies in the retail industry.

Although the scientific and regulatory communities have disagreed about the alleged carcinogenicity of glyphosate for years, the debate drew little attention from the general public until August 2018, when a California state jury slammed Monsanto with a $289 million verdict after a groundskeeper claimed that his exposure to Roundup® weed-killer caused his non-Hodgkin's lymphoma, in Johnson v. Monsanto.1 While the Johnson court later slashed the punitive damages award by $211 million on due process grounds, it ultimately left the jury's causation findings intact and the reduction in damages has done little to quell the media attention on glyphosate.

The International Agency for Research on Cancer (IARC)—a subdivision of the World Health Organization—first classified glyphosate as "probably carcinogenic to humans" in 2015. Two years later, in December 2017, the United States Environmental Protection Agency (EPA) released a risk assessment classifying glyphosate as "not likely to be carcinogenic to humans." A majority of regulators around the world have since sided with EPA, including multiple European agencies, Australia and New Zealand. While California had initially placed glyphosate on its Prop 65 list of chemicals "known to the state to cause cancer" in July 2017 just before EPA released its risk assessment, a federal court temporarily enjoined the state from requiring companies to place Prop 65 warning labels on foods that may contain traces of glyphosate in February 2018, finding that requiring labels would violate the First Amendment because, aside from IARC, "almost all other regulators have concluded that there is insufficient evidence that glyphosate causes cancer."2 The federal court presiding over the Roundup multidistrict litigation (MDL) has also weighed in on the controversy, calling the testimony of plaintiffs' scientific experts "shaky," but ultimately admissible under the Daubert standard.3

While retail companies may believe that they have science on their side, the Johnson verdict and federal MDL Daubert decision make clear that that argument may not be enough to win in court. Companies will be forced to defend against the narrative crafted by plaintiffs' lawyers and consumer advocacy groups like the Environmental Working Group (EWG), who have worked to keep glyphosate in the public eye by criticizing prominent companies for alleged glyphosate residue in their products and calling for tougher regulations. EWG has emerged as an early leader in glyphosate consumer advocacy, publishing a self-commissioned "study" five days after the Johnson verdict that reportedly found that the majority of the food samples tested by EWG contained glyphosate levels higher than what EWG considers to be safe—although none of the products exceeded current legal limits. EWG followed up with a second round of tests in October 2018, claiming that it detected traces of glyphosate in 28 samples of different oat-based food products. EWG has also teamed up with eight major food companies to petition EPA to reduce the current glyphosate tolerance level in oat-based products from 30 ppm to 0.1 ppm, the original level set by EPA in 1993. Most recently, EWG attacked the Food and Drug Administration (FDA) after the agency released a report in October 2018 concluding that over 99 percent of United States-sourced foods it tested in 2016 complied with federal glyphosate tolerance levels. EWG criticized the FDA for not testing oat- and wheat-based products—the type of products EWG claims are most likely to be contaminated by the chemical.

Spurred by their early success against Monsanto and armed with the support of consumer groups like EWG, plaintiffs' lawyers are now looking to target a wider range of defendants, especially those whose products may contain ingredients treated with glyphosate. At least two different companies have been hit with putative class action suits based, at least in part, on the results of EWG's study. Six days after the Johnson verdict, General Mills was hit with a putative class action suit in Florida, relying on EWG's report in alleging that General Mills deceived consumers by failing to disclose that Cheerios products contain traces of glyphosate.4 The new claims against General Mills came just as the company agreed to remove the phrase "natural" from its granola products to settle a two-year-old lawsuit alleging that the "100% Natural Whole Grain Oats" label misled consumers because the products contained traces of glyphosate.5 Another putative class, also citing EWG's report, recently sued Kellogg Co. in California for failing to disclose traces of glyphosate allegedly contained in two of its popular food products.6

We expect plaintiffs' lawyers to continue to bring glyphosate-related claims against an increasing range of defendants in the retail industry in 2019, which will bring a number of milestones in glyphosate litigation and regulation. The first bellwether trials of the Roundup federal multidistrict litigation are scheduled to begin in February and May 2019, and Monsanto's appeal of the Johnson verdict will work its way through the courts.

Because glyphosate is so widely used in agriculture, it is likely that plaintiffs' lawyers have only scratched the surface of the potential pool of glyphosate defendants, which could include any company in the retail chain associated with a product with components that may have been treated with glyphosate at some point in the manufacturing process. Companies that advertise their products as "natural" or "organic" or tout their products' health benefits should be especially aware of the threat of glyphosate litigation, especially because plaintiffs' lawyers tend to bring those types of claims as nationwide class actions. And all companies should take the opportunity now—before being hit with litigation—to review supply and distribution agreements to evaluate and negotiate risk-shifting and indemnification provisions associated with products that may be the subject of glyphosate litigation.

Footnotes

1 Johnson v. Monsanto Co., No. CGC16550128 (Cal. Super. Ct., County of San Francisco Aug. 10, 2018).

2 See Nat'l Assoc. of Wheat Growers v. Zeise, 309 F.Supp.3d 842 (E.D. Cal. 2018).

3 See Pretrial Order No. 45: Summary Judgment and Daubert Motions, In Re: Roundup Products Liability Litigation, No. 16-md-02741-VC (N.D. Cal. July 10, 2018).

4 See Doss v. General Mills Inc., No. 0:18-cv-61924 (S.D. Fla. Aug. 16, 2018).

5 See Organic Consumers Association, et al. v. General Mills, Inc., No. 2016 CA 006309 B (D.C. Super. Ct. Sept. 21, 2018).

6 Kien v. Kellogg Co., No. 3:18-cv-02759-AJB-MSB (S.D. Cal. Dec. 7, 2018).

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