Earlier this month we discussed the terms of a proposed agreement between Bayer and 25 law firms that would allocate approximately $10 billion to settle thousands of claims alleging that glyphosate—the active ingredient in the weed killer Roundup, causes cancer. 

We noted that the creation of a scientific panel to evaluate the link between glyphosate and cancer and whose findings would determine the fate of future lawsuits against the company was “a small glimmer of hope for the integrity of science.”

Unfortunately, Judge Vince Chhabria of the U.S. District Court in San Francisco doused that glimmer by questioning the constitutionality of handing the issue to a panel of scientists instead of judges and juries, asking “In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases?”

As a result, Bayer and the plaintiffs’ lawyers will work to refine the terms of the agreement to settle future cases. In the meantime, legal marketers will continue to recruit new clients into the settlement through aggressive television ads.

Glyphosate has been safely used in commercial farming and backyard gardening for decades. The research on the carcinogenicity of glyphosate is extensive—dozens of studies have been conducted, including by the National Institutes of Health and the Environmental Protection Agency—and all found that there was no association between glyphosate and cancer. 

In fact, earlier this month a federal judge permanently blocked efforts by the state of California to require cancer warning labels on Roundup, saying that such labels would be misleading and not backed up by regulatory findings. Given this, it is hard to understand Judge Chhabria’s view that the science on the chemical is “evolving.”

The single contrary finding on glyphosate was included in a now controversial and widely disputed study conducted by the World Health Organization’s International Agency for Research on Cancer (IARC) that found that glyphosate was “probably carcinogenic.” 

One study among dozens which concluded opposite claims should not have the ability to force a product off of the market, yet that one study was enough to fuel a massive class action lawsuit against the manufacturer based on dubious scientific evidence that will result in a multi-billion dollar settlement, most of which will go to a handful of “mass tort” law firms.

Bayer’s decision to settle is based on simple economics: it is almost impossible to estimate the cost of continuing to defend lawsuits in state courts across the U.S.—and possibly lose a few on the way—than it is to set aside a defined amount of funds to close the book on the matter. 

The Center understands that class action lawsuits are an important tool to offset the asymmetry of the relationship between a large corporation and an individual consumer. The threat of such litigation provides an incentive for companies to go the extra mile to protect consumers from any possible harm that could result from the use of their products. Companies that do behave badly can be forced to pay enormous claims to those who are legitimately damaged by their actions.

But abuses of the system that subject companies to coercive practices that force them to make decisions based on economics rather than sound scientific evidence benefit only professional litigators.   In legal disputes over chemicals such as glyphosate, where reams of scientific evidence existed long before any claims were filed, judges should take the lead on calling for an examination of all the scientific evidence by an independent panel of professionals to determine the carcinogenic capacity of a particular chemical or compound before litigation is allowed to proceed. 

On issues where such research does not exist, litigants and judges should agree to the appointment of an independent scientific panel to conduct original research to develop such findings. Such practices would result in a more efficient judicial system and the settlement of legitimate claims in a fast and fair manner.

The ultimate goal here is fairness and facts. Those who are legitimately damaged by a company’s negligent actions or products should be compensated fairly. And, the decisions about liability and damage awards should be based on fact-based science, not economic coercion.