Bayer Statement on Supreme Court Decision to Deny Review of Hardeman
Bayer today issued the following statement on the Supreme Court’s decision to deny review of the Hardeman case:
“Bayer respectfully disagrees with the Supreme Court’s decision to deny the Petition for Writ of Certiorari in Hardeman. The company believes that the decision undermines the ability of companies to rely on official actions taken by expert regulatory agencies, as it permits every U.S. state to require a different product label, which conflicts with the clear intent of the ‘uniformity clause’ adopted by the U.S. Congress in FIFRA and similar statutes. While this decision brings an end to the Hardeman case, there are likely to be future cases, including Roundup™ cases, that present the U.S. Supreme Court with preemption questions like Hardeman and could also create a Circuit split.
“The company is strongly encouraged by the widespread support from public officials, agricultural organizations and other stakeholders following the U.S. Government’s legal reversal in Hardeman. These third parties expressed opposition to the Solicitor General’s brief and raised significant concerns that it departed from science-based regulation, could exacerbate food shortages at a critical time, threatened environmental sustainability and was prepared without consultation with the U.S. Department of Agriculture 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 U.S. as previously communicated in July 2021. Bayer took a provision in the second quarter of 2021 of $4.5 billion, in addition to the $2 billion previously taken, before tax and discounting, to reasonably account for claims settlement, defense costs, judgments, and administrative expenses.
“The voluntary claims resolution program for the U.S. Roundup™ product liability litigation is a key element of the company’s five-point plan to help bring closure to the litigation in the United States. The company is fully prepared to launch the claims resolution program but that decision will depend on key developments in the litigation, including trials and appeals.
“The claims resolution program involves no admission of wrongdoing or liability. While the company expects any future claims program would be successful, it is fully prepared to defend cases in court where the expectations of claimants are unreasonable and fall outside the bounds of this program. The company has won the last four Roundup™ verdicts (Clark, Stephens, Shelton, and most recently Johnson) and now has a winning record at trial. The company is confident that the extensive body of science and consistently favorable views of leading regulatory bodies worldwide provide a strong foundation on which it can successfully defend Roundup™ in court when necessary. The company will only consider resolving outstanding current 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 the risks of Roundup™ litigation in the U.S. 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 Eleventh Circuit Court of Appeals following a ruling by the federal district court for the Southern District of Georgia that state-law failure-to-warn claims were preempted by federal law. The Solicitor General’s brief 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 beginning in 2023, and is on track with the commercial, regulatory, and supply elements required for this transition. The company is taking this action exclusively to manage litigation risk in the U.S. and not because of any safety concerns, and the company is fully committed to the availability of glyphosate-based agriculture and professional products. Moreover, 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 stand fully behind 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. Most recently, as part of the European Union’s glyphosate renewal process the European Chemicals Agency’s Committee for Risk Assessment found that ‘Based on a wide-ranging review of scientific evidence, the committee again concludes that classifying glyphosate as a carcinogen is not justified.””