Five-Point Plan to Close the Roundup™ Litigation
Our five-point plan, announced in May 2021, provides a clear path to closure of the U.S. glyphosate litigation, which will allow our company, our customers, and our shareholders to move on, put the uncertainty behind us, and focus on our performance, innovations, and contributions to society.
Five-point plan at-a-glance:
While the U.S. Supreme Court communicated on June 21 2022 its decision not to accept the Hardeman case, there are likely to be future cases, including Roundup™ cases, that present the Supreme Court with preemption questions and could also create a Circuit split. The Solicitor General’s brief indicated that a Circuit split would increase the grounds for Supreme Court review.
In case of a negative outcome at the U.S. Supreme Court, we have set an additional provision aside $4.5 billion to manage anticipated claims, through settlement and litigation. This covers potential long-term financial exposure and leaves significant upside in case of a positive outcome at the U.S. Supreme Court.
108,000 of approximately 149,000 claims have been resolved or deemed to be ineligible. We will consider settling cases when it is strategically advantageous for the company to do so. At the same time, following six consecutive trial wins, the company is fully confident in its legal strategy and prepared to defend cases at trial when appropriate.
To further reduce future litigation risk, we will replace our glyphosate products in the U.S. residential L&G market with new formulations that have alternative active ingredients beginning in 2023. We are taking this action exclusively to manage litigation risk and not because of any safety concerns. The vast majority of claims have come from residential L&G users, so this action largely eliminates the primary source of future claims. This action does not impact any of our glyphosate-based agriculture or professional products.
End of 2021, we created a new webpage (EPA's Review of Glyphosate Safety | Global (bayer.com)) that hosts links to scientific safety studies on our glyphosate products. The webpage brings even more transparency and information to customers about the products they choose. We will request permission from the U.S. EPA to promote the webpage on glyphosate product labels.
- On November 9th, 2022, the jury in the Ferro trial issued an unanimous verdict in our favor and determined that Roundup™ was not responsible for the injuries alleged by the plaintiff. This is the sixth consecutive trial win for Monsanto.
- On September 1st, 2022, the jury in the Alesi trial issued an verdict in our favor and determined that Roundup™ was not responsible for the injuries alleged by the plaintiffs. This is the fifth consecutive trial win for Monsanto. The trial took place in Missouri.
- On June 27, 2022, the U.S. Supreme Court communicated not to accept the Pilliod case. Bayer respectfully disagrees with the Supreme Court’s decision, but the company is not surprised given the Court’s declination in Hardeman just one week ago. There are likely to be future cases, including Roundup™ cases, that present the U.S. Supreme Court with preemption questions like Pilliod and Hardeman and could also create a Circuit split and potentially change the legal environment.
- On June 21, 2022, the U.S. Supreme Court communicated that it does not accept the review of the Hardeman case. Here is our statement.
- On June 17, 2022, the jury in the Johnson trial issued an unanimous verdict in our favor and determined that Roundup™ is not the cause of Mr. Johnson’s cancer. This is the fourth consecutive trial win for Monsanto. The trial took place in Oregon.
- On June 9, 2022, the jury in the Shelton trial issued a verdict in our favor and determined that Roundup™ is not the cause of Mr. Shelton’s cancer. This is the third consecutive trial win for Monsanto, following favorable verdicts in Clark and Stephens. The trial took place at the Circuit Court of Jackson County, Missouri at Kansas City.
- On May 23, 2022, we filed another brief regarding the Petition for a Writ of Certiorari in Hardeman: “The company continues to believe there are strong legal arguments to support Supreme Court review and reversal in Hardeman, as its petition and the many amicus briefs filed in support of the petition underscore. The company has filed a final brief regarding its Petition for a Writ of Certiorari and looks forward to a decision from the Supreme Court. The U.S. EPA has consistently found that glyphosate-based herbicides can be used safely and are not carcinogenic, in line with leading regulators worldwide. If the Ninth Circuit Court of Appeals’ decision in Hardeman is left standing, it would undermine the ability of companies to rely on official actions taken by expert regulatory agencies and to meet today’s pressing food security and environmental challenges.” The full brief can be found here.
- On May 10, 2022, the Solicitor General filed a brief recommending that the Supreme Court deny review of Hardeman and disagreeing with our arguments in the case. “The company continues to believe there are strong legal arguments to support Supreme Court review and reversal in Hardeman, as its petition and the many amicus briefs filed in support of the petition underscore. Indeed, the expert U.S. agency, the Environmental Protection Agency, has consistently found that glyphosate-based herbicides can be used safely and are not carcinogenic. Therefore, a cancer warning would be false and misleading and would be preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).”
“The decision to accept or deny review rests with the Supreme Court, which will consider the views of the parties – including an additional brief to be filed by the company – as well as the brief from the Solicitor General. Regardless of the final outcome at the Supreme Court, the company is fully prepared to move forward with its five-point plan, manage litigation risks and bring closure to the Roundup™ litigation.”
- On March 17, 2022, we filed a petition for certiorari with the U.S. Supreme Court in our appeal of the Pilliod verdict. The California state court’s decision in Pilliod warrants review by the U.S. Supreme Court because the state-based failure-to-warn claims at the center of the case are preempted by federal law and the punitive damages award is excessive and violates the U.S. Constitution. The petition is the first Roundup™ case to challenge the constitutionality of a punitive damages award in the U.S. Supreme Court. The petition explains that the award here is unconstitutional both because it is impermissibly high (four times the substantial compensatory damages award) and because no punitive damages award is proper, as the company acted in accordance with the scientific and regulatory consensus regarding the safety of its product. The petition in Pilliod follows a similar filing in Hardeman.
- On December 13, 2021, the U.S. Supreme Court issued an order in Monsanto Co. v. Hardeman requesting the views of the Solicitor General on behalf of the United States. We are encouraged by the Supreme Court’s Call for the Views of the Solicitor General in Hardeman and believe there are strong legal arguments to support Supreme Court review and reversal, as its petition, and the many amicus briefs filed, in support of the petition underscore. Indeed, the U.S. expert agency, the Environmental Protection Agency, has consistently found that glyphosate-based herbicides can be used safely and are not carcinogenic, and has stated that a cancer warning would be false and misleading and misbrand the product. As previously announced, we have been very selective in our settlement approach since filing our Petition for a Writ of Certiorari in Hardeman. Now that the Supreme Court has requested input from the Solicitor General in this case, we will not entertain any further settlement discussions with plaintiff lawyers that are representing a substantial number of Roundup™ claims.
- On December 9, 2021, the jury in the Stephens trial issued a verdict in our favor and determined that Roundup™ is not the cause of Ms. Stephens’ cancer. The outcome of this case follows a favorable verdict in Clark and the plaintiff’s voluntary dismissal in Jimenez and marks the third positive development in the Roundup™ litigation in recent months. The trial took place in the Superior Court of the State of California for the County of San Bernardino.
- On October 5, 2021, the jury in the Clark trial issued a verdict in our favor. The jury determined that Roundup did not cause the illness of the plaintiff’s child. This verdict brings the Clark trial to a successful conclusion. The Clark trial took place in the Superior Court of the State of California for the County of Los Angeles. This was the fifth case to go to trial. We are fully prepared to go to trial when, as in this case, the demands of hold-out plaintiff firms are unreasonable.
“Bayer respectfully disagrees with the Supreme Court’s decision to deny the Petition for Writ of Certiorari in Hardeman. The company believes that the decision undermines the ability of companies to rely on official actions taken by expert regulatory agencies, as it permits every U.S. state to require a different product label, which conflicts with the clear intent of the “uniformity clause” adopted by the U.S. Congress in FIFRA and similar statutes. While this decision brings an end to the Hardeman case, there are likely to be future cases, including Roundup™ cases, that present the U.S. Supreme Court with preemption questions like Hardeman and could also create a Circuit split.
The company is strongly encouraged by the widespread support from public officials, agricultural organizations and other stakeholders following the U.S. Government’s legal reversal in Hardeman. These third parties expressed opposition to the Solicitor General’s brief and raised significant concerns that it departed from science-based regulation, could exacerbate food shortages at a critical time, threatened environmental sustainability and was prepared without consultation with the U.S. Department of Agriculture which has a vital interest in the outcome of the case.
With its five-point plan, the company is fully prepared to manage the litigation risk associated with potential future claims in the U.S. as previously communicated in July 2021. Bayer took a provision in the second quarter of 2021 of $4.5 billion, in addition to the $2 billion previously taken, before tax and discounting, to reasonably account for claims settlement, defense costs, judgments, and administrative expenses.
The voluntary claims resolution program for the U.S. Roundup™ product liability litigation is a key element of the company’s five-point plan to help bring closure to the litigation in the United States. The company is fully prepared to launch the claims resolution program but that decision will depend on key developments in the litigation, including trials and appeals.
The claims resolution program involves no admission of wrongdoing or liability. While the company expects any future claims program would be successful, it is fully prepared to defend cases in court where the expectations of claimants are unreasonable and fall outside the bounds of this program. The company has won the last four Roundup™ verdicts (Clark, Stephens, Shelton, and most recently Johnson) and now has a winning record at trial. The company is confident that the extensive body of science and consistently favorable views of leading regulatory bodies worldwide provide a strong foundation on which it can successfully defend Roundup™ in court when necessary. The company will only consider resolving outstanding current cases and claims if it is strategically advantageous to do so.
Bayer also continues to make progress on the rest of its five-point plan to manage and address the risks of Roundup™ litigation in the U.S. The U.S. Supreme Court is expected to rule on the company’s pending petition to review the Pilliod case soon. The Carson case is before the Eleventh Circuit Court of Appeals following a ruling by the federal district court for the Southern District of Georgia that state-law failure-to-warn claims were preempted by federal law. The Solicitor General’s brief in Hardeman referenced the Carson case, indicating that a Circuit split would increase the grounds for Supreme Court review.
Additionally, the company is transitioning its glyphosate-based products in the U.S. residential Lawn & Garden market to new formulations that have alternative active ingredients beginning in 2023, and is on track with the commercial, regulatory, and supply elements required for this transition. The company is taking this action exclusively to manage litigation risk in the U.S. and not because of any safety concerns, and the company is fully committed to the availability of glyphosate-based agriculture and professional products. Moreover, Bayer has launched a website that hosts relevant scientific studies on the safety of Roundup™ as part of its commitment to transparency and science.
Bayer continues to stand fully behind its Roundup™ products which are a valuable tool in efficient agricultural production around the world. Significantly, the weight of scientific evidence and the conclusions of all expert regulators worldwide continue to support the safety of glyphosate-based herbicides and that they are not carcinogenic. Most recently, as part of the European Union’s glyphosate renewal process the European Chemicals Agency’s Committee for Risk Assessment found that “Based on a wide-ranging review of scientific evidence, the committee again concludes that classifying glyphosate as a carcinogen is not justified.”
We stand fully behind the safety of our glyphosate products
Our five-point plan does not include any admission of liability or wrongdoing. Rather, the actions we are taking are a result of the mass tort system in the U.S.
We have great sympathy for anyone who suffers from disease, and we understand their search for answers. At the same time, the extensive body of science continues to show that our products are not responsible for the illnesses alleged in this litigation.
For nearly 50 years, leading health regulators around the world have repeatedly concluded that our glyphosate products can be used safely, and that glyphosate is not carcinogenic. This includes recent conclusions by the U.S. Environmental Protection Agency (EPA), the EU’s Assessment Group on Glyphosate (AGG), the European Food Safety Authority (EFSA), the European Chemicals Agency (ECHA), and the leading health authorities in Germany, Australia, Korea, Canada, New Zealand, and Japan.
Glyphosate-based herbicides are one of the most thoroughly studied products of their kind, which is one reason so many growers and others continue to rely on these products to help them safely, successfully, and sustainably control problematic weeds.
We are investing and innovating to develop additional weed-control solutions
Growers need to control weeds in order to successfully grow crops. There is no single solution – instead, growers use a range of tools and practices to control weeds. While glyphosate will continue to play a key role in our herbicide portfolio and in agriculture overall, we are leading the way in developing additional tools and advancing integrated weed management (IWM).
We invest over $2 billion in R&D for farming solutions every year. We recently announced over $5 billion of that investment will go to furthering IWM over the next decade. As part of these efforts, we also recently announced the discovery of a new breakthrough herbicide molecule, the first of its kind in more than 30 years.
As a leader in agriculture, we know we have a heightened responsibility and the unique potential to advance farming for the benefit of society and the planet. We are committed to living up to this responsibility, and our five-point plan to end the U.S. glyphosate litigation will enable us to reach our full potential.