Bayer moves to block lawsuits that claim glyphosate causes cancer

For the past 7 years, Bayer has shelled out billions of dollars in lawsuits brought by people claiming they developed cancer after exposure to its glyphosate-containing weed killers, including its popular Roundup herbicide. Now the German firm is fighting these cases on fronts other than trial courts.

The company, with the support of conventional agricultural groups, is asking state legislatures to block lawsuits that are against chemical makers and that claim that exposure to a federally approved pesticide caused cancer in a person. In addition, in early April, Bayer petitioned the US Supreme Court to take up such a case. The company seeks a ruling that the nation’s pesticide law, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), bars these personal injury suits.

Litigation over glyphosate led Bayer to remove it from US consumer products in 2023. Now Bayer says continual personal injury lawsuits could force it to stop or reduce the industrial sale of glyphosate, a chemical that conventional US farming relies on heavily for growing commodity crops, including soybeans and corn.

The company’s lobbying efforts have led to legislation that is pending before the governor in Georgia. But that bill—and such state legislation in general—faces opposition from environmental activists as well as the Make America Healthy Again (MAHA) movement. Bayer’s success or failure will determine the company’s future financial health and influence whether conventional agriculture will turn to different chemicals or farming techniques.

An inherited problem

Bayer inherited hundreds of thousands of personal injury cases involving glyphosate in 2018 when it acquired Monsanto, the chemical company that commercialized the substance as an herbicide active ingredient in 1974. The financial drain stemming from this liability has chafed at Bayer shareholders.

The pace of US plaintiffs filing these suits increased in 2015, when the International Agency for Research on Cancer, part of the World Health Organization, declared glyphosate “probably carcinogenic to humans.” The agency found “limited evidence of carcinogenicity in humans for non-Hodgkin lymphoma,” a blood cancer that forms in the lymph system, it says in the monograph that announced its findings. In an April 4 statement, Bayer calls the agency’s decision “a single outlier report that is now a decade old.”

But since 2015, additional evidence has accumulated linking glyphosate exposure to this disease, the advocacy group Center for Food Safety says in a recent filing to the US Environmental Protection Agency. It cites several studies, including a 2021 one in Clinical Lymphoma, Myeloma, and Leukemia (DOI: 10.1016/j.clml.2021.04.009).

Bayer has made settlements in some cases and appealed judgments in others to seek reductions in financial awards.

In the cases, Bayer maintains that its glyphosate-containing products, including Roundup, do not cause cancer. It points out that in 2020, the EPA declared that glyphosate is not a carcinogen.

Bayer has prevailed in some of these personal injury suits, which are called toxic torts, on the basis of this argument.

The Center for Food Safety, on behalf of environmentalists and farmworkers, sued the EPA over the 2020 decision, which the agency made during the first administration of President Donald J. Trump. In 2022, a federal appeals court ordered the agency to reassess the human cancer and ecological risks of glyphosate. In response, the EPA under President Joe Biden decided to completely rework the assessment. The agency’s web page on glyphosate says the reassessment is ongoing.

Bayer lobbies state legislatures

Bayer recently expanded its fight against glyphosate lawsuits by taking its concerns to state lawmakers, reframing the toxic tort litigation against it as a threat to US agriculture. Last year, the company founded the Modern Ag Alliance, which consists of state and regional agricultural and crop-specific associations and farm bureaus. Bayer is the sole pesticide manufacturer in the group. The alliance is pushing legislation in statehouses to block suits against pesticide makers if the EPA registers the chemical and if the product carries an EPA-approved label.

The Modern Ag Alliance is taking aim at a type of product liability called failure to warn, which plaintiffs use as a basis for glyphosate litigation. Plaintiffs claim that Bayer is liable under state law because it provided inadequate warnings or instructions about the safe use of glyphosate—and that this omission led to the plaintiffs developing cancer.

The Modern Ag Alliance is focusing on such failure-to-warn liability. “Any pesticide registered with the EPA—and sold under a label consistent with the EPA’s own determinations—is sufficient to satisfy health and safety warning requirements,” the group says on its “About Us” page.

But the Center for Food Safety says in a press release, “This means if a harm isn't specifically listed on the EPA label, affected individuals would be unable to seek damages, effectively shielding manufacturers from lawsuits brought by individuals and communities harmed by their products. Such lawsuits are available for all other industries who make products that hurt people.”

Bills emerge in 11 states

Thus far this year, 11 states—Florida, Georgia, Idaho, Iowa, Mississippi, Missouri, Montana, Oklahoma, North Dakota, Tennessee, and Wyoming—have introduced measures to curb personal injury cases involving EPA-registered pesticides, according to Beyond Pesticides, a health and environmental activist group that is tracking the state legislation. Bills in the North Dakota and Missouri legislatures can be raised for a final vote at any time before they adjourn in May, according to the web page tracking the bills.

Georgia could become the first state to adopt such a measure. Its General Assembly passed SB 144 in March and sent it to Gov. Brian Kemp (R). Kemp has until mid-May to decide whether to sign or veto the legislation. If he opts not to do either, the bill will become law automatically.

Carter Chapman, Kemp’s deputy press secretary, tells C&EN that the governor’s office will conduct “a thorough review” of SB 144 before announcing whether he will sign it.

Kemp faces political pressure against signing the bill into law from the growing MAHA movement championed by Robert F. Kennedy Jr., secretary of the US Department of Health and Human Services. Previously, Kennedy, who is an attorney, was involved in glyphosate personal injury cases against Bayer.

Del Bigtree, CEO of MAHA Action, spoke at a March 31 news conference against the state legislation that Bayer and the Modern Ag Alliance are promoting. “They're attempting to poison you without indemnification.” To protect these companies from liability does not make sense, Bigtree said.

Georgia’s legislature passed SB 144 on March 13, days before a jury in the Atlanta suburb of Cobb County awarded nearly $2.1 billion in damages to a consumer who developed non-Hodgkin’s lymphoma after using Roundup around his home for 2 decades. The award consists of $2 billion in punitive damages and $65 million in compensation.

Bayer is appealing the Georgia jury’s verdict and award. “We believe that we have strong arguments on appeal to get this verdict overturned and the excessive and unconstitutional damage awards eliminated or reduced,” the company says in a statement.

In the past when Bayer has appealed cases after final judgments, courts have reduced original jury awards of damages by 90% overall, according to the company’s statement.

But the $2.1 billion award in Georgia “underscores the risk Bayer continues to take by fighting these cases instead of settling them,” Baltimore-based firm Miller & Zois says on its website that tracks personal injury cases, including those involving glyphosate.

Bayer says on its website that 114,000 of some 181,000 claims have been resolved or deemed to be ineligible as of Jan. 31, leaving about 67,000 pending. More than 4,000 claims are pending in a single Roundup class action lawsuit in California, according to Miller & Zois, which represents plaintiffs in personal injury cases.

Supreme Court push

In addition to seeking state legislation to eliminate these personal injury lawsuits, Bayer is looking to the US Supreme Court to put a stop to them.

“A favorable ruling by the Supreme Court could largely curtail this litigation,” Bayer says in its April 4 statement.

The Supreme Court in 2022 declined a request by Bayer to review a personal injury case involving a California jury’s $25 million verdict from 2019. In that case, the US Court of Appeals for the Ninth Circuit ruled in 2021 that a plaintiff’s failure-to-warn claims based on Roundup’s labeling were consistent with FIFRA.

But since then, US appeals courts have been divided as to whether FIFRA, the federal pesticides law, bars the state cases. The split arose from an August 2024 ruling that rejected a Pennsylvania man’s suit claiming he developed non-Hodgkin’s lymphoma after years of exposure to Roundup. In that case, the US Court of Appeals for the Third Circuit held that FIFRA preempts, or overrides, Pennsylvania law.

In contrast, when the US Court of Appeals for the 11th Circuit ruled on a case involving a Georgia plaintiff in February 2024, it found that FIFRA overrides only state requirements that are “ ‘in addition to or different from’ federal requirements.” The court found Georgia law to be “less demanding than the federal requirements.”

Bayer’s April 4 petition to the US Supreme Court involves a personal injury case that the Supreme Court of Missouri declined to review. In that suit, a jury accepted a claim that Missouri requires the company to warn that glyphosate is carcinogenic but rejected other claims, awarding the plaintiff $1.25 million in compensation with no punitive damages.

“This claim is plainly in conflict with the product label EPA approved under federal law, based on the agency’s rigorous scientific assessment, and cannot be changed without agency approval,” Bayer says in its April 4 statement.

When asked if a Supreme Court victory would reduce or eliminate the need to pursue state legislation, Bayer tells C&EN in an email, “We are taking a multipronged approach of seeking legislation at both the state and federal level. Through the Modern Ag Alliance and other farmer organizations, there are more than 360 state and federal ag groups supporting bills like these. We are also committed to addressing these challenges in court—including seeking clarity from the Supreme Court on this matter.”

Whether through a Supreme Court ruling or state legislation, Bayer says it expects toxic torts involving Roundup—and the financial liability the company faces—will eventually become a thing of the past.

“Based on decades of science and worldwide regulatory assessments that continue to support Roundup’s safety and non-carcinogenicity, we are confident that we can bring this litigation to an end,” Bayer says in its “Managing the Roundup^TM Litigation” web page.

But Bill Freese, science director for the Center for Food Safety, sees Bayer’s actions as an attempt to evade liability for cancer in people already exposed to a toxic substance the company has made for decades. He tells C&EN, “That’s despicable.”