Bayer speaks out about setback at the US Supreme Court

The United States Supreme Court yesterday denied Bayer's “writ of certiorari” in one of the cases involving compensation claims related to the use of Roundup. This means that the process has come to an end. In terms of Brazil, it is equivalent - with some differences - to a declaration of lack of general repercussion by the STF.

Regarding the issue, Bayer issued the following official note:

"Bayer respectfully disagrees with the United States Supreme Court's decision to deny the appeal of the Hardeman Case (“Writ of Certiorari”). The company believes that the decision undermines the ability of companies to rely on official actions taken by specialized regulatory agencies, as it allows each US state to require a different product label, which conflicts with the clear intent of the 'uniformity clause' adopted by the US Congress in FIFRA and similar statutes. Although this decision brings an end to the In the Hardeman case, there are likely to be future cases that present the Court with preemption issues like Hardeman and could also create a split in the Circuit.

The company is strongly encouraged by the widespread support from public officials, agricultural organizations and other stakeholders in the wake of the U.S. Government's legal reversal in Hardeman. These third parties expressed opposition to the Attorney General's mandate and expressed significant concern that it departs from science-based regulation, could exacerbate food shortages at a critical time, threatens environmental sustainability, and was prepared without consultation with the Department of Agriculture. of the United States, 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 United States, as previously communicated in July 2021.  Bayer made a provision in the second quarter of 2021 of US$ 4,5 million, in addition to the $2 million previously taken, before taxes and discounts, to reasonably account for dispute resolution, defense costs, trials and administrative expenses.

Roundup's voluntary dispute resolution program is a key element of the company's five-point plan to help end litigation in the United States. The company is fully prepared to launch the dispute resolution program, but this decision will depend on key developments in the litigation, including trials and appeals.

The dispute resolution program does not involve any admission of wrongdoing or liability. While the Company expects any future claims program to be successful, it is fully prepared to defend cases in court where claimants' expectations are unreasonable and do not fall within the limits of this program. The company has won the last four Roundup verdicts (Clark, Stephens, Shelton, and most recently Johnson) and now has a record of trial victories. The company is confident that the vast body of science and consistently favorable opinions of the world's leading regulatory bodies provide a solid foundation upon which it can successfully defend Roundup in court when necessary. The company will only consider resolving outstanding 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 U.S. Roundup litigation risks. 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 Court of Appeals for the Eleventh Circuit, following a ruling by the Federal District Court for the Southern District of Georgia that claims for damages for failure to comply with state law were preempted by federal law. The Attorney General's term 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 starting in 2023, and is on track with commercial, regulatory and supply necessary for this transition. The company is taking this action solely to manage the risk of litigation in the US and not because of any safety concerns, and the company is fully committed to the availability of glyphosate-based agricultural and professional products. Additionally, 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 fully support 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. More recently, as part of the European Union's glyphosate renewal process, the European Chemicals Agency's Risk Assessment Committee concluded that "Based on a broad review of the scientific evidence, the committee again concluded that the classification of glyphosate as a carcinogen is not justified."

The petition can be read here.