The Environmental Protection Agency and the Justice Department have filed a brief supporting Bayer in its appeal of a $25 million jury award to a California man who said Roundup caused his non-Hodgkin lymphoma, according to reporting by The Wall Street Journal. Government lawyers told the Ninth U.S. Circuit Court of Appeals that Congress gave the EPA sole control over safety labeling for chemical products, and that the agency would not have cleared a cancer warning for the herbicide.
Plaintiffs in the wider litigation have pointed to a 2015 finding by the International Agency for Research on Cancer that glyphosate is a probable human carcinogen. Bayer disputes that conclusion. The plaintiff’s lawyer dismissed the appeal as a long-shot bid. The Journal’s full account is worth reading.
Summary and commentary by The Times Contrarian. Based on reporting by Jacob Bunge and Timothy Puko, The Wall Street Journal, December 2019 (wsj.com).
Our view: This is less a fight about science than about who gets to speak. If a federal agency’s labeling authority blocks a state jury from punishing a company for silence, the whole failure-to-warn theory that has driven these verdicts starts to wobble. That is a big structural argument riding on a single appeal.
Two questions worth holding onto. Does an agency’s refusal to permit a warning really settle whether a company should have warned, or only whether it legally could? And what does it mean for public trust when the regulator becomes an active litigant on the manufacturer’s side? Watch how the appellate judges treat the brief, and whether settlement talks accelerate either way.