Less than a month after one California court ruled that the state government of California has no basis to enforce a cancer-warning label on Roundup weedkiller labels, a different California court—the California Court of Appeals—has ruled that the Monsanto corporation, which invented both Roundup weed killer and the controversial active ingredient contained within it, glyphosate, has an obligation to warn consumers of the potential risk of the herbicide.
Due to the passage of Proposition 65 in the state of California, every potentially-carcinogenic ingredient, by law, must carry a warning. Officially named The Safe Drinking Water and Toxic Enforcement Act of 1986, the act was passed by voter initiative.
But because of last month’s ruling by a court in the state’s Eastern District, glyphosate is exempt from Prop. 65 warnings. The appellate court, however, applied the far broader strict liability standard, pointing to evidence presented in the litmus test trial that garnered massive media coverage, that of former groundskeeper, Dwayne “Lee” Johnson.
Johnson, the first plaintiff to successfully sue Monsanto, was initially awarded $289 million by a unanimous jury; the reward was later reduced to $78 million. Recently, an appeals court upheld Johnson’s trial win but recommended further reducing the damages to $20.5 million. Bayer AG, which acquired Monsanto in 2018, and by extension, the company’s Roundup lawsuits, is asking an appeals court to further reduce Johnson’s award by another $4 million.
In his trial victory, Johnson alleges that he developed non-Hodgkin’s lymphoma, a rare type of cancer, directly because of the several years of using Roundup while on the job. He also claims to have accidentally spilled the herbicide on his body.
In ruling that Monsanto has a duty to warn customers of the potential risk of Roundup products, the California Court of Appeals pointed to studies during the Johson trial, which demonstrated glyphosate’s potential to be toxic to DNA.
The Court’s ruling gives states such as California the leeway to provide warnings to customers even if the product or ingredient runs contrary to the findings of the federal government. For example, the Environmental Protection Agency’s (EPA) maintains that glyphosate poses no health risk to people.
Although this development may seem like a legal win for critics of Monsanto, glyphosate and Roundup products, due to the fact that there has not been a clear scientific consensus on glyphosate toxicity (a black/white, yes/no to the question: does glyphosate cause cancer?), the appeals court ruling will not and cannot be cited as precedent in future Roundup trials.
