Two recent developments in separate court cases involving glyphosate herbicides deserve comment.

Glyphosate, known by the trade name Roundup, has been used as an herbicide for 40 years. More recently, it has also been used in conjunction with a handful of genetically modified “Roundup Ready” crops that that allow farmers to kill weeds without killing the crops.

The nexus between the cases is a paper written in 2015 by the World Health Organization’s International Agency for Research on Cancer classifying glyphosate as “probably carcinogenic to humans.”

The finding runs counter to what the Environmental Protection Agency, the European Union’s Glyphosate Task Force, the German Federal Institute of Risk Assessment and other regulatory and research agencies have concluded.

In reaching its findings, IARC did not conduct original research. It evaluated available literature.

But based on the finding, the state of California in 2017 added glyphosate to its list of chemicals “known to cause cancer or birth defects or other reproductive harm.” State Proposition 65 requires warning labels for products containing chemicals known to the state to cause cancer.

Plaintiffs sued, arguing the state had ignored the findings of hundreds of studies and the conclusions of regulatory agencies around the world.

U.S. District Judge William Shubb last month agreed, granting summary judgment and issued a permanent injunction against the warning.

In 2018 Shubb issued a preliminary injunction against the state, noting that basing a warning on the finding of one organization that is disputed by other regulatory bodies was misleading. In his final ruling, Shubb said the statement that glyphosate is “‘known to the state of California to cause cancer’ is misleading. Every regulator of which the court is aware, with the sole exception of the IARC, has found that glyphosate does not cause cancer or that there is insufficient evidence to show that it does.”

Also last month Bayer, the owner of Monsanto, announced it would pay up to $10.9 billion to settle litigation involving Roundup.

The company faces more than 125,000 lawsuits from plaintiffs, using the WHO finding as evidence, who allege the herbicide caused their cancer.

Three California juries have found in separate cases that Roundup caused plaintiffs’ cancers. Last summer a jury in California ordered the company to pay a couple $2 billion.

“It is financially reasonable when viewed against the significant financial risks of continued, multi-year litigation and the related impacts to our reputation and to our business,” Bayer CEO Werner Baumann said in a statement concerning the settlement.

Bayer’s decision is particularly interesting coming on the heels of Shubb’s ruling, which bolsters its case.

Despite a dearth of evidence, sympathetic juries are willing to help cancer victims by tapping into Bayer’s deep pockets. The cost of litigating 125,000 cases through appeals would easily surpass what Bayer has agreed to pay.

Shubb’s ruling was based on the facts. Bayer’s decision was based solely on the financial calculus. The price of truth, unfortunately, is just too high.

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