Glyphosate trials and tribulations - a follow-up

In August we covered the highly publicised Johnson Vs Monsanto trial, in which a Californian groundskeeper claimed exposure to glyphosate (the main ingredient in Roundup) caused his non-Hodgkin’s lymphoma.

The outcome of that trial was a $289 million-dollar award (including $250m in damages) to the plaintiff, despite a number of regulatory agencies including the EPA, WHO, and FAO being unable to find any evidence of increased risk of cancer from glyphosate exposure.

After three months of appeals, rejections and media speculation, the lengthy Johnson/Monsanto case doesn’t appear to be at an end, with Bayer expected to appeal the latest verdict delivered in October.

Let’s take a look at how the affair has unraveled so far, and explore its effects both abroad and here in New Zealand.

Case Timeline:

September 18 – Monsanto bids to toss verdict

On the 18th of September, roughly a month after the initial verdict was reached, Monsanto were back in the San Francisco Superior Court filing a motion to have it thrown out.

On the grounds of insufficient evidence, Monsanto asked Superior Court Judge Suzanne Bolanos (who oversaw the trial) to set aside the verdict, or in the alternative, reduce the award or grant a new trial.

Judge Bolanos set a hearing for the motions on October 10.  

October 10 – Hints of a new trial

Judge Suzanne Bolanos ruled tentatively in the favour of Monsanto/Bayer, saying she was inclined either to vacate the damages or grant a new trial.

She based her decision on the “insufficiency of the evidence to justify the award for punitive damages”, saying Johnson had failed to meet his burden of producing clear and convincing evidence of malice or oppression by Monsanto (a requirement for allowing a jury to award damages).

October 23 – New trial bid rejected, damages reduced

Despite her initial tentative ruling in favour of Bayer’s bid to overturn the September jury verdict and conduct a new trial, Judge Bolanos ultimately decided to reject it.

However, she did rule to substantially reduce the punitive damages from $250 million to $39 million, meaning, should they accept it, the final verdict would have Monsanto pay $78 million total.  

Johnson’s lawyers released a statement saying the reduction in damages was unwarranted and they were ‘weighing a response’. Bayer, too, announced plans for further action, saying the result was a step in the right direction but they planned to file another appeal of the verdict.

Should Johnson’s team choose not to accept the reduction, the judge declared she would grant a new trial.

November 2 – Johnson accepts reduced damages

On the 2nd of November Dewayne Johnson and his legal team announced their decision to accept Judge Bolanos’ October 23rd verdict of a reduction in punitive damages.

Johnson’s spokeswoman Robin McCall said his attorney disagreed with the judge’s settlement reduction but decided to accept the lower amount in hopes of achieving “a final resolution within his lifetime.”

Bayer spokesman Daniel Childs said his company remained focused on defending glyphosate and would appeal any adverse verdicts, including (it is expected) this one.

Response

The U.S

Plenty has happened on the glyphosate front in the United States since the Monsanto/Johnson case reached its initial verdict.

In mid-August the Environmental Working Group (EWG) carried out tests to determine the presence of glyphosate in a range of breakfast foods, including granola bars (Nature Valley), Quaker Oats, Cheerios, Nutrigrain bars, and Kellogg’s’ Oat Bran.

After finding minute traces of the herbicide in nearly every product, the EWG created a mild panic by declaring “unsafe levels of weed killer in breakfast foods”, a headline picked up and spread by various major news outlets including CNN and ABC.

However, as numerous health organisations and regulatory agencies were quick to point out, the EWG’s classification of ‘unsafe’ needs to be put into context.

For their findings, the group set a consumption safety guideline of no more than 0.01 milligrams of glyphosate per day for a standard adult. This is 100 times smaller than the limit used by California’s Office of Environmental Health Hazard Assessment, which currently sets the level of glyphosate intake posing no significant health risks at 1.1 milligrams per day for an average adult. It’s also ten times less than the limit set by the EPA.

The highest level reported by the EWG was 1,300 parts per billion - found in Quaker Old Fashioned Rolled Oats. To put this number into context: an adult would have to eat 118 pounds of the food item every day for the rest of their life in order to reach the EPA’s limit.

U.S cereal companies have suffered little in terms of sales since the study was released, but it has prompted further investigations into food products (dog food, for instance), none of which have found it to be present at levels considered dangerous by health organisations or the EPA.

Food safety concerns aside, the biggest impact of the Johnson/Monsanto case in the U.S have been, unsurprisingly, on Bayer and Monsanto themselves.

Immediately after the initial verdict, Bayer’s shares began to slide, with stocks trading at 20% below their August 9 value by the end of that month. They rose steadily through September and early October as suggestions of a retrial or a removal of damages surfaced, but dropped rapidly again (by 8.5%) on the 23rd, when judge Bolanos upheld the juries original verdict.

On top of this, Bayer look to be in for some serious legal headaches.

According to Claims Journal, roughly 8,700 plaintiffs are currently waiting in the wings with lawsuits against Bayer, the costs of which could be in the hundreds of billions.

Australia

Following the Monsanto/Johnson verdict, the Australian Cancer Council called for an independent review of glyphosate’s safety, backed by the greens.

In response, the Australian Pesticides and Veterinary Medicines Authority — Australia’s regulator for glyphosate-based products — issued a press release defending its regulatory systems and decisions regarding the use of glyphosate.

Australian growers also bit back at the criticisms of glyphosate, many contacting MPs in their electorates to highlight the importance of glyphosate to their businesses and the ag sector in general.  

The Australian Pesticides and Veterinary Medicines Authority (APVMA) already conducted a reconsideration report on glyphosate in 2016, concluding that use of the chemical in Australia did not pose a cancer risk to humans, and that products containing glyphosate were safe to use as per the label instructions.

That assessment was undertaken in response to the IARC’s 2016 monograph on glyphosate, on which much of the case for Dewayne Johnson having contracted cancer from the chemical rested.

Whether the chemical will soon face another review in Australia remains to be seen.

If it were to be reviewed, and subsequently banned in Australia, many experts suggest the immediate effects would be negative in nature.

Jim Pratley, Professor of Agricultural Science at Charles Sturt University, has said a ban would, initially, see a turn back to stronger chemical controls, more burning of fuel to prepare ground for planting crops, and more soil erosion.

Weed professor Brian Sindel says agricultural production would be severely impaired given glyphosate is the go-to herbicide for Australian farmers.

He also echoes the sentiments of many Australian soil and agriculture scientists who say the recent developments in the U.S and Europe shouldn’t influence Australia given the dramatic differences in climatic conditions.

University of New England pollution specialist Associate Professor Susan Wilson sums up this point well:

"The way soils and plants take up glyphosate and how much it degrades or leaches in the environment depends on the soil type and climatic conditions," she said. “The situation in the Northern Hemisphere is different to Australia. We need to understand whether glyphosate poses the same concerns here and, with this information, decide whether a complete ban or restrictions on its use are warranted."

 Pollution Specialist Dr. Susan Wilson

Pollution Specialist Dr. Susan Wilson

Europe

The impact of the Johnson/Monsanto trial in Europe has been substantial.

The head of the European Parliament’s special committee on the EU’s pesticide authorization process called for a total ban on glyphosate in August.

Soon after, the Italian Deputy Prime Minister, Luigi Di Maio posted the following message on Facebook: “We must fight the invasion of this substance in our market, a threat that exists due to monstrous commercial agreements signed only in the name of profit”.

This was followed by a comment from France’s Environment Minister, Nicolas Hulot, who said (during a radio interview) that the court’s verdict was the beginning of a war against glyphosate in Europe, and that, if we (Europe) wait, “such poisons will not be prevented from doing their damage and the victims will be excessively numerous.”

Both France and Italy have promised to phase out the use of glyphosate domestically within three years.

Germany (Bayer’s home country) could also be heading for a phase out, with environment minister Svenja Schulze announcing today plans to limit glyphosate use in sensitive areas until 2023, at which time a ban would be enforced.

 Glyphosate protesters in Germany

Glyphosate protesters in Germany

Why 2023?

Well, last year, the European Commission extended a license to use glyphosate for a further five years, after a sufficient majority of EU countries voted in favour of its renewal.

This means France and Italy, while they can promote a reduction in domestic glyphosate use over the next three years, will also not be able to see it banned until (at the earliest) late 2022.

The response to Svenja Shulze’s announcement in her own country is likely to be mixed. Helmut Schramm, head of Bayer CropScience, has previously said a glyphosate ban would result in more plowing and put German farmers at a competitive disadvantage. In August, he said the debate over glyphosate in Germany was “shaped by political interests and not by sound scientific insight”, and declared: “glyphosate is a safe, efficient and established product to secure farmer’s harvests”.

No joint plan regarding Schulze’s intentions for glyphosate has yet been reached with Germany’s agriculture minister, and it is, as of yet, unclear how the proposed phase outs of the chemical in Italy or France will be carried out.

Turning to the UK, considerable debate around the safety of glyphosate has arisen from the U.S saga, however, no plans for banning or restricting its use have been announced.

Canada

As was the case in North America, the Monsanto/Johnson trial prompted an investigation into the glyphosate levels of a range of supermarket foods in Canada in October.

Conducted by Environmental Defense Canada and commissioned by the Coalition for Action on Toxics, the testing found small levels of the popular weed killer to be present in a number of popular Canadian snack foods such as Cheerios, Tim Hortons Tidbits and Catelli multigrain spaghetti.

Based on their findings, the coalition demanded the government reform and strengthen Canada’s laws governing the regulation of toxics: the Pest Control Products Act and the Canadian Environmental Protection Act (CEPA).

However, while glyphosate was present in all but four of the products tested, none contained the chemical at levels deemed unsafe by Health Canada, so any governmental reforms appear unlikely.

Cam Dahl, president of Cereals Canada, had the following to say on the issue:

“It’s important to consider the small amount of herbicide found in the 18 products. If people want to know what a part per billion is, you would have to eat about 36,000 full loaves of bread in a single day to get to the allowable daily limit of glyphosate. So these are very, very small, small numbers.”

More recently, Health Canada has decided to review hundreds of studies used during the approval process for glyphosate.

Why?

Well, a coalition of environmental groups, including Equiterre, Ecojustice, and Canadian Physicians for the Environment claim HC relied on studies that were secretly influenced by Monsanto when it re-approved use of glyphosate in 2015 and confirmed that decision in 2017.

In a statement to CBC, Bayer has refuted the claims, saying it has an “unwavering commitment to sound science transparency” and did not try to influence scientific outcomes in any way. The company says in each case where it sponsored a scientific article, that information was disclosed.

New Zealand

As in Britain, the Johnson/Monsanto case spurred considerable debate, criticism and outcry here in New Zealand, but, ultimately, the regulations around its use remain the same, and no ban or phase-out appears on the horizon.

The NZ EPA announced, in October, a reassessment of forty chemicals from over 700 on a priority list.

Many, given the developments overseas, felt glyphosate should have been included, however, the EPA excluded it, saying:

“Glyphosate does not appear on the list because, based on its hazard profile and risk to human and environmental health, it does not meet the priority criteria."

As discussed in our September article on the subject, a ban in New Zealand would be of substantial cost to the farmer and consumer and would also have negative impacts on the environment.

Experts feel until suitable alternatives to the chemical exist its use should continue, provided regulations and safety precautions are adhered to.

What’s next for Bayer and glyphosate?

The future of the glyphosate issue is unclear.

It is assumed Bayer will appeal the latest court decision in an attempt to slash the remaining damages and clear the name of Monsanto and Roundup - whether that appeal has much chance of success is hard to say.

What isn’t so hard to say is that the Monsanto/Johnson trial had a huge effect on the international reputation of glyphosate.

Writing for Country Guide, Gerald Pilger describes some of these effects and what they mean for glyphosate’s future:

“By October 1, 2018, over 200 products sold under 17 different brand names were displaying the Glyphosate Residue Free symbol on their packaging and another 50 brands representing hundreds more products are currently in the process of securing Glyphosate Residue Free certification. Farmers can expect increasing backlash over their use of glyphosate because of this labeling. The Glyphosate Residue Free label will be more harmful to primary producers than even the non-GMO butterfly label on foodstuffs.

“Glyphosate Residue Free certification is a program developed by the Detox Project. The actual certification platform is administered by a private company led by Henry Rowlands. “Food brands are getting in trouble with consumers because of glyphosate residues in their products,” explains Rowlands. As a result, he says food companies are calling on his company for Glyphosate Residue Free certification in order to verify their products do not have glyphosate residues. Cost of certification is US$1,472 per brand as well as a US$200 test fee for each product test.

“When asked about the long-term goal of his certification program, Rowlands quickly responds: “Ending the use of glyphosate as a desiccant.”

“Some companies are now facing lawsuits by consumers for not revealing glyphosate residues in their products. Shortly after the Johnson trial ended, a class action lawsuit was initiated against General Mills for failing to reveal glyphosate residues in Cheerios. Bigalow teas and Quaker Oats have also been named in lawsuits pertaining to glyphosate residues.

“Legal actions against food processors and retailers will certainly increase pressure on farmers to reduce their use of glyphosate —especially pre-harvest.”

  Chosen Foods -  One of several U.S organisations now displaying the “Glyphosate Residue Free” label

Chosen Foods - One of several U.S organisations now displaying the “Glyphosate Residue Free” label

Bayer will also, of course, be awaiting the conclusion of the current Health Canada review which they say will clear Monsanto of having had any hand in producing hundreds of studies demonstrating no link between cancer and glyphosate.

When that conclusion will be reached remains, for now, unknown.