TOXIC TORTS: One Step Forward, Two Steps Back for Monsanto and Glyphosate


Two days after the European Chemicals Agency (ECHA) announced that glyphosate does not cause cancer, over forty California residents sued its developer, Monsanto Co., and one of its distributors, Wilbur-Ellis Company, alleging that Monsanto's Roundup® products, which contains glyphosate, caused them or their decedents to develop non-Hodgkin's lymphoma and other hematopoietic cancers.

On March 15, 2017, the European Chemicals Agency (ECHA), an agency of the European Union (EU) that manages the technical, scientific and administrative aspects of the implementation of EU's chemicals legislation, stated that it would maintain its current "classification of glyphosate as a substance causing serious eye damage and being toxic to aquatic life with long-lasting effects." In reaching its decision, ECHA's Committee for Risk Assessment (RAC) concluded that the available scientific evidence did not meet the criteria to classify glyphosate as a carcinogen, as a mutagen, or as toxic for reproduction.

This finding was consistent with the European Food Safety Authority's conclusion expressed in November 2015, which directly contradicted the "probable" link between glyphosate and cancer that International Agency for Research on Cancer (IARC) warned about earlier that year.

Yet, on March 17, 2017, forty-one plaintiffs filed a complaint for personal injuries and wrongful death in Alameda County Superior Court. In Lorette I. Pennie, et al. v. Monsanto Company, et al. (Alameda County Sup. Ct., RG17853420), Plaintiffs alleged, among other things, that "Defendants knew or should have known that the Roundup® products were defective and were inherently dangerous and unsafe when used in the manner instructed and provided by Defendants." The allegations in the complaint relied heavily on the findings by IARC. Plaintiffs seek to recover under theories of strict liability, negligence, fraud, and breach of warranties, as well as punitive damages.

This lawsuit follows another setback for Monsanto Co. earlier this month when Fresno County Superior Court Judge, Hon. Kristi Culver Kapetan, ruled on March 10, 2017 that California's Office of Environmental Health Hazard Assessment (OEHHA) could move forward with its plan to include glyphosate on its Proposition 65 list. The list contains a wide range of naturally occurring and synthetic chemicals that are known to cause cancer or birth defects or other reproductive harm. If a product placed in the stream of commerce in California contains a chemical included in the Proposition 65 list, said product must include a specific warning unless the exposure is low enough to pose no significant risk of cancer, birth defects or reproductive harm.

Monsanto Co. sued to block OEHHA from including glyphosate in the Proposition 65 list, claiming that OEHHA acted unconstitutionally in listing it and was impinging on Monsanto's First Amended right to free speech by requiring Monsanto to include warning labels on products containing glyphosate. While the ECHA's finding may assist in combating lawsuits such as Pennie alleging a causal link between glyphosate and cancer, the inclusion of glyphosate on the Proposition 65 list, as well as IARC's "probable" link between glyphosate and cancer, will unfortunately allow such lawsuits to proceed past the pleading stages.

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