11
Sep
Black Farmers Association Sues Bayer/Monsanto for Failure to Warn on Glyphosate/Roundup Hazards and Disproportionate Risk; Seeks Chemical’s Removal from Market
(Beyond Pesticides, September 11, 2020) In late August, the National Black Farmers Association filed suit against the chemical company Bayer/Monsanto, seeking to stop the sale of its ubiquitous, glyphosate-based herbicide, Roundup. According to the Midwest Center for Investigative Reporting, the lawsuit argues that Black farmers are, essentially, forced to use Roundup and incur the risks of developing non-Hodgkin Lymphoma or other cancers (or health impacts) because of the exigencies of the pesticide and biotech industry “grip” on agriculture in the U.S. The suit maintains that Bayer (which owns Monsanto, the original manufacturer of Roundup) knowingly failed, and continues to fail, to warn farmers adequately about the dangers of the pesticide. In a Labor Day Daily News post, Beyond Pesticides noted that current pesticide laws result in disproportionate impacts on workers, including agricultural workers of color. Beyond Pesticides is committed to addressing the conditions that give rise to disproportionate harm and to working in broad coalitions to correct them.
Many countries have banned use of Roundup, largely because of glyphosate’s strong links to many health issues, including cancer, endocrine disruption, Parkinson’s Disease, and reproductive and immunological anomalies. The compound is regarded as carcinogenic by the International Agency for Research on Cancer and by many public health experts and researchers. The Environmental Protection Agency (EPA) has concluded otherwise in its May 2019 interim decision, asserting that glyphosate herbicides are “not likely to be carcinogenic to humans,” and again in January 2020, when it reinforced that position in a news release that said, “After a thorough review of the best available science, as required under the Federal Insecticide, Fungicide, and Rodenticide Act, EPA has concluded that there are no risks of concern to human health when glyphosate is used according to the label and that it is not a carcinogen.”
That 2019 announcement came, from an administration that has skewered, suppressed, and delegitimized science, despite an April 2019 report by the Agency for Toxic Substances and Disease Registry — an agency of the U.S. Department of Health and Human Services — that evidenced findings supporting glyphosate’s carcinogenicity. Bayer rejects claims that Roundup causes cancer, despite both the evidence to the contrary, and many successful decisions in litigation based on this claim.
In 2019, less than 2% of U.S. farmers were Black, according to Pacific Standard. Investigate Midwest puts that metric at 1.3%, and adds that “Black farmers own .52% of U.S. farmland. . . . Overall, Black people make up about 13.4% of the U.S. population, the U.S. Census reports.” In addition, Black farmers tend, on average, to operate smaller farms and have narrower profit margins than operations owned by white farmers.
The suit brought by the National Black Farmers Association (NBFA) is led by Ben Crump, a well-known civil rights lawyer who has represented the families of numerous Black people killed or injured by law enforcement. Mr. Crump, according to law.com, has said that although Bayer claims that it agreed to the June 2020 settlement of a multidistrict suit (see below) “without regard to race or any other demographics,” the company’s failures to warn users of the dangers of the herbicide Roundup fell more heavily on Black farmers.
The plaintiff’s arguments are several. The farmers contend that — in a landscape of Bayer Crop Science’s near-hegemony on some genetically engineered, Roundup-ready seeds, especially soy, corn, and cotton — they are essentially forced to buy Roundup-resistant seeds and, with burgeoning resistance issues, larger quantities of Roundup every year, putting them at significant, and disproportionate, risk of developing cancer. The suit also argues that Black farmers are, on average, less literate than the general population, and have disproportionately limited access to the Internet. Thus, they generally rely more heavily on local seed salespeople for guidance about seed and pesticide purchases. Salespeople, Beyond Pesticides notes, are in the business of selling products and making money, rather than protecting farmers’ health.
The NBFA litigation is the latest in a massive number of lawsuits involving Roundup — more than 125,000 on cancer claims alone — brought against the company by victims of glyphosate exposure. In an attempt to consolidate many of those suits under a single settlement, Bayer/Monsanto announced in June 2020 that it would “pay up to $10.9 billion to resolve current and potential future litigation. According to Bayer, the settlement will ‘bring closure’ to approximately 75% of current Roundup™ litigation.” U.S. District Judge Vince Chhabria (of the Northern District of California) issued a 60-day stay of the lawsuit to allow the settlement to proceed.
That deal, however, may be in trouble, according to Bloomberg and The New York Times. In July, the NYT reported that court approval of one strand of the complex agreement — a plan for handling claims in the future from those who develop glyphosate-related non-Hodgkin Lymphoma — appeared doubtful. At that time, Judge Chhabria spoke of his concerns: that the agreement puts unfair limits on the ability of future plaintiffs to sue, and worries about creation of a scientific panel tasked with a decision on the carcinogenicity of glyphosate. He said then that he was “skeptical of the propriety and fairness of the proposed settlement, and . . . tentatively inclined to deny the motion.”
In an August 27, 2020 status hearing on the case, counsel for the plaintiffs charged that Bayer appears to be going back on the terms of the deal; Judge Chhabria acknowledged his receipt of confidential letters from a number of plaintiffs’ counsel with cases pending in the MDL (multi-district litigation). The letters expressed concern about Bayer’s actions, and cited as evidence the company’s termination of settlement term sheets and refusal to execute master service agreements that would finalize settlements. The company did acknowledge that there were at that point no final agreements.
Judge Chhabria indicated that he had understood Bayer’s June 24 announcement of the settlement to mean that the company and plaintiffs’ counsel were agreed on settlement terms and process, stating that he had taken “‘all of that to mean the MDL is settled.’” According to Bloomberg, “Brent Wisner, one of the lead attorneys for consumers, told the judge ‘there is no settlement.’ He urged Judge Chhabria to lift a pause on the litigation because the process has hit a wall. . . . ‘At this point it’s become clear to me that when we were told we had an agreement, either they didn’t have authority to do that or they’ve reneged on it.’” Judge Chhabria said that he would not lift or extend the current stay.
Judge Chhabria is also considering making public those letters that set out plaintiffs’ concerns with the status of the settlement, calling them “matters of significant public concern.” Bayer wants badly to be done with this settlement, but is also adamant that it resolve the issue of future litigation, so Judge Chhabria’s reticence on these matters could threaten the conclusion of the settlement. Another such “status conference” is set for September 24; if the settlement is not finalized by then, it is possible that the lawsuit would be restarted.
Two plaintiffs in the NBFA suit are also plaintiffs in the MDL glyphosate suit, who have refused to participate in the pending $10.9 billion settlement, according to Bayer spokesperson Susan Luke. She added, in a statement to the Midwest Center for Investigative Reporting: “Racism has no place in our society or at Bayer. This lawsuit is brought by two law firms that are holdouts in the Roundup product liability litigation and people should see this action for what it is — an attempt by plaintiffs’ lawyers to use media and more litigation to further their own financial interests. There is no basis in fact or law for the health claims in this suit, as Roundup has been assessed and approved by independent health regulators worldwide, including the EPA, which have found that Roundup can be used safely as directed.”
Referencing the MDL suit, the NBFA litigation notes that “conspicuously absent from these damages, actions, and purported settlements is any effort to get Roundup® off the shelf and protect farmers from the harm that it causes,” and that if the herbicide is going to continue to be sold, it should at the very least have a warning label. In the summer of 2019, EPA quashed California’s effort to label glyphosate products with a cancer warning; Beyond Pesticides wrote then, “The move comes after the state of California listed glyphosate on its Prop 65 list of chemicals known to cause cancer, birth defects or other reproductive harm. Health advocates are condemning the decision as the latest in a long string of EPA actions aimed at benefiting industry at the expense of consumer and public health. Many are concerned that the incessant stream of industry-friendly decisions is eroding public trust in the agency and its ability to act as an independent regulator.”
Beyond Pesticides will continue to monitor this suit and others that aim to constrain or remove glyphosate products from the market. We remain committed to equity in the protection of human health and the environment from the dangers of toxic pesticides, and to ending disproportionate impacts of their use, as well as other environmental injustices, in the lives of Black and Indigenous people, and other people of color. Please see Beyond Pesticides’ statement on Black Lives Matter.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
