Introduction

Plaintiffs’ lawyers in several states are investigating cases of non-Hodgkin lymphoma and other forms of cancer in individuals exposed to the widely used herbicide glyphosate. These investigations follow on the heels of a 2015 report by a working group at the International Agency for Research on Cancer (IARC), which concludes that glyphosate is probably carcinogenic in humans.  At least five product liability lawsuits already have been filed, including one in California where the court recently denied defendant’s motion to dismiss.  Manufacturers, distributors and users of glyphosate likely will see an increasing number of these cases and should be prepared to respond.

Background

Glyphosate is one of the most widely used herbicides in the world, with a broad range of agricultural, commercial and even household applications. On July 29, 2015, an IARC task force published a monograph concluding that there is sufficient scientific evidence of glyphosate’s carcinogenicity in experimental animals and that the herbicide also caused DNA and chromosomal damage in human cells.  Based on its review, the task force concluded that glyphosate probably is a human carcinogen and recommended that the Joint Meeting on Pesticide Residue (JMPR) reevaluate glyphosate, along with two other pesticides.  JMPR is set to reevaluate glyphosate at its next meeting in May 2016.

The Joint Glyphosate Task Force, LLC (JGTF), which has more than 20 corporate members with a glyphosate technical registration in the U.S. or Canada, criticized the IARC report, noting that the monograph contained no new studies or data and pointing out that regulatory agencies around the world have conducted thorough and science-based risk assessments on glyphosate, concluding that it was not a human carcinogen.

In September 2015, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of intent to list glyphosate as a substance known to cause cancer under California’s Prop 65. According to OEHHA, California law requires the listing based on the IARC report.  In early 2016, Monsanto filed a lawsuit against OEHHA seeking to block the proposed listing.

In April 2016, the Alliance for Natural Health published a study finding that 10 out of 24 common breakfast foods contained detectable levels of glyphosate that may result in the consumer ingesting more than EPA believes to be safe. The study concludes by recommending further evaluation by the FDA and EPA.

Existing Litigation

We are aware of five product liability lawsuits that have been filed following the IARC report. Three are pending in Delaware, one is in Hawaii and another in California.  The California case is pending in the Northern District, where a federal judge issued a decision on April 8, 2016 denying the motion to dismiss.  The court’s order rejects preemption arguments that were based on the Federal Insecticide, Fungicide, and Rodenticide Act and the EPA’s approval of glyphosate.  The ruling likely will embolden plaintiffs’ counsel and lead to more cases being filed.  Food producers also could be a litigation target based on recent research finding glyphosate residue on common foods.  At least three class actions already have been filed against a major manufacturer of breakfast cereals, claiming that the product fails to disclose that it contains glyphosate.  In addition, if glyphosate is added to the Prop 65 list, litigation is sure to follow, and many food manufacturers may need to consider adding warnings to products sold in California.