Are courts doing enough to protect public health?
Glyphosate is used widely as an integral part of raising crops including corn, soybeans and cotton genetically modified to resist its killer effect, and as a desiccant on potatoes, sugar beets, wheat and other crops just before harvest. In 2023, a study published in the Journal of the National Cancer Institute concluded that “glyphosate has the potential to cause cancer,” as reported by The Guardian.
Barnes is one of many litigants attributing his non-Hodgkin lymphoma to Bayer/Monsanto’s failure to adequately warn him of the dangers of glyphosate, the active ingredient in Roundup. In early April, Bayer’s corporate lawyers went on the offensive, asking the U.S. Supreme Court to, as the Associated Press reported, “decide whether federal law preempts thousands of state lawsuits alleging it failed to warn people” that Roundup could cause cancer.
Bayer disputes such claims and has set aside $16 billion to settle cases such as Barnes’. It has filed with the Supreme Court to reverse a similar case in St. Louis, Missouri, claiming federal law preempts state law claims because the company complies with federal glyphosate labeling requirements.
Translated from legal mumbo jumbo, “federal preemption” means that a federal statute — in this case, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) — overrides state laws that conflict with the “higher” rules of the U.S. Congress. Often, such laws shield large corporations from accountability for the personal injuries or deaths caused by their dangerous products, even where companies conceal or conspire to prevent the public from knowing the truth.
This is precisely what the jury in the Georgia case believed in Barnes’s case. Juries don’t grant punitive damages based on simple negligence, but rather when they are convinced at trial of serious wrongdoing. A 2024 Philadelphia verdict awarded $2.25 billion to a litigant against Bayer for the same reasons.
Attorney Kyle Findley, the lead trial lawyer on both cases, said the evidence in the Barnes case demonstrated “many years of cover-ups” and “backroom dealings.” He accused Monsanto of ignoring several scientific studies related to the toxicity of Roundup and said the company “tried to find ways to persuade and distract and deny the connection between this product and non-Hodgkin’s lymphoma.”
To cover its litigation bets, Bayer spearheaded a national back-door effort to insulate itself from future liability by lobbying for state laws that will immunize pesticide companies from legal accountability for injuries as long as their product labels comply with EPA mandates. State lawmakers in Georgia and North Dakota have passed bills that would protect pesticide manufacturers from the same kind of legal liability that held Bayer responsible for Barnes’ cancer.
Bayer/Monsanto claims it stands behind the safety of its products, despite more than 177,000 lawsuits by people who allege they caused illness or death. The company will now seek to persuade the U.S. Supreme Court to strike down all such cases using the shield of federal preemption, claiming that it is the government’s job to protect the public and that if the regulatory agencies fail, chemical companies owe no duty for harms caused.
The company basically avers that its financial solvency and continued operations preempt risks to public health. What may be at stake are hundreds of thousands of cases of non-Hodgkin lymphoma, which the American Cancer Society reports is one of the most common cancers in the United States.
The EPA will not require more stringent Roundup labeling anytime soon, having determined that glyphosate is safe. The U.S. National Institutes of Health found no link between glyphosate and cancer. Both agencies are at odds with the International Agency for Research on Cancer, which classifies it as a probable carcinogen. A recent study claims that “agricultural pesticide use in the U.S. is linked to various cancers as strongly as smoking cigarettes.”
As states and courts wrangle over whether to shield companies behind FIFRA regulations, the EPA has dithered over glyphosate. For example, the EPA’s Feb. 3, 2020, Glyphosate Interim Registration Review Decision “did not identify any human health risks of concern from exposure to glyphosate but did identify potential ecological risks.”
Given the history of American courts shielding corporations from liability for harms caused by their products — and the growing distrust of the federal agencies charged with protecting public health above corporate profits — Americans are right to question whether their judicial system is designed to keep them safe.
It isn’t. We deserve better.
(Originally published at the Baltimore Sun.)
My brother was heavily exposed to this from constant runoff under his house and food garden from the adjacent boatyard that used Roundup to regularly kill all vegetation on the edges of their property. After twenty years living there he developed lymphoma, which fortunately he was (barely) able to recover from. Anecdotal, likely directly related to the boatyard's spraying practices.
The courts will protect only one thing and that is the system itself. It fails to protect the constitution many times it creates rights where none exists but it’s masterful at protecting the DC Swamp’s power.