Bayer and Monsanto Defend Themselves With Science They Funded

Janine Jackson: The case is called Edwin Hardeman v. Monsanto, which sounds something like David v. Goliath. Hardeman is a 70-year-old man who says using Roundup, Monsanto’s weed killer, for nearly 30 years caused his non-Hodgkin’s lymphoma.

And Monsanto is, well, Monsanto. Recently acquired by German drug and crop chemicals company Bayer for some $66 billion, the corporate behemoth commands more than a quarter of the combined world market for seeds and pesticides, with a famously active PR machine.

And yet Goliath lost. The jury in US District Court in San Francisco returned the necessary unanimous decision, finding that Roundup caused, or was a substantial factor in causing, Hardeman’s cancer. And that Monsanto should be held liable, because the herbicide is not labeled to warn of that risk.

The company, naturally, is appealing. But with more than 11,000 other cases in the wings, this story isn’t going away anytime soon.

Our next guest has been following this case and others. A longtime food and agriculture journalist at Reuters, Carey Gillam is now research director at US Right to Know, and author of the book Whitewash: The Story of a Weed Killer, Cancer and the Corruption of Science, out from Island Press. She joins us now by phone from Kansas. Welcome back to CounterSpin, Carey Gillam.

Carey Gillam: Thanks for having me.

Listeners may remember the case last year in which a California jury found that the use of Roundup by a school groundskeeper, Dewayne “Lee” Johnson, was a substantial factor in his non-Hodgkin’s lymphoma. But that ruling didn’t make this one a sure thing, or even an expected thing.

I’m noticing that some coverage seems to be taking a line that, as a former federal prosecutor was quoted on one news show, the verdict “proves that juries are being convinced that Roundup is causing cancer.” Another headline was, “A Man Said He Got Cancer After Spraying Monsanto’s Weed Killer. A Jury Agreed.” It makes it sound as though these court decisions are mainly the result of fancy lawyering, or maybe even deception. But Hardeman’s attorneys presented scientific data, just as Monsanto did; it wasn’t based on sympathy-mongering or something, right?

Right. Of course, it is Bayer and Monsanto’s argument, or position, that the science is on their side, that the weight of scientific evidence shows no cancer risk, no carcinogenicity connection to its glyphosate-based herbicides like Roundup. But the evidence tells us otherwise.

And, of course, I’ve written a whole book about it, and talked about it many times. The weight of scientific evidence, published peer-reviewed epidemiology, toxicology, mechanistic data done over multiple years, multiple countries, does indeed show a cancer risk associated with these herbicides, with clear association to non-Hodgkin’s lymphoma. And that’s what caused the International Agency for Research on Cancer, in 2015, to classify glyphosate, the main ingredient in Monsanto’s Roundup, as a probable human carcinogen. So there’s a great deal of scientific evidence, and that’s what is convincing juries.

But the second leg of this, or the second part of it, is there’s also a great deal of evidence of Monsanto’s manipulation of the scientific record. So when Monsanto says it has all of this science on its side, well, we know now from internal Monsanto documents, that a lot of that science they point to is science that they paid for, that they wrote, that they ghostwrote, that they manipulated — that they essentially had a hand in creating a safety narrative that really was not true.

It’s interesting, because I think that was why some folks were surprised by the ruling in Hardeman, because the judge, Vince Chhabria, had taken a lot of issue, hadn’t he, with Hardeman’s attorneys presentation of the case? And what he seemed to take particular issue with was lead attorney Aimee Wagstaff’s effort to introduce evidence of just that, of Monsanto’s effort to manipulate regulators, including ghostwriting safety reviews. And I’m not sure, legally, whether that’s permissible, but it sure sounds relevant to me as a layperson, if the company is then going to rely on that data from those regulators.

Right. Well, what Chhabria did — and this is the federal judge; the Johnson case was in state court — but what he did was really unusual. He threw Monsanto a bone. Monsanto said, “You know what? Let’s just let the jurors hear only about the scientific evidence.”

And so the judge divided the case into two phases. And the first phase was sharply limited to only discussion and presentation of scientific studies to the jurors. And Monsanto thought that they would win that. If the jurors couldn’t know about their ghostwriting and manipulation, they thought that they could win.

But, in fact, they did not. The jurors in that first phase said, after looking at all of the scientific evidence, that the weight of evidence was on the plaintiff’s side. And they found that, yes, it did cause his cancer.

In the second phase of the trial was when they considered damages, and that was when they looked at the manipulation of science, and came back with this $80 million verdict.

Let me just keep you on regulators for a second. When you’re reading press accounts, you see: Bayer/Monsanto flatly deny that glyphosate-based herbicides are carcinogenic, and they cite the Environmental Protection Agency. So in media stories, you get kind of disagreements between institutions, between the World Health Organization, EPA and different groups. What are we to make of the disagreements between various regulatory entities on this?

Well, a couple of different elements to that. So No. 1 is that most of the regulatory agencies, including the Environmental Protection Agency, only require a large body of evidence about the active ingredients. So in the case of Monsanto’s products, the active ingredient is glyphosate. It is not the only ingredient, but it is the active ingredient. So their studies, that they were required to present to the EPA, was limited to glyphosate.

Now, the products on the store shelves are not glyphosate only; they include surfactants. And scientists around the world who have studied the actual formulated products have said that the way that these surfactants interact with glyphosate make it much more toxic than glyphosate by itself.

And Monsanto admits it has never done any long-term studies about these formulated products, and the EPA admits that it’s never required any long-term studies. So the actual products that we’re being exposed to, and that are being used out there, and that these plaintiffs [have] used, have never had any long-term regulatory requirements for carcinogenesis studies. And that is shocking to a lot of people. But that is the fact. So that’s one element.

The other element is, again, the regulators rely primarily on data and information that’s been given to them by the companies that sell the chemicals. And we know, from analysis that’s been done, that studies that are done by companies that profit from those products generally find those products to be safe. Whereas independent analysis and independent research is more likely to find risk, if risk is there. We have to take that into account when they point to the EPA as the all-knowing being that we should rely on.

Right. So it’s about carcinogenicity; it’s also about the right to know. I mean, capitalists talk a good game about choice. But what is choice without information? And the failure-to-warn, I’ve heard, is very important in these cases. But I have to say, I still wonder how much say a farmworker, for example, really has, even if there’s a label on the product. And given the ubiquity of these chemicals in our food, I certainly think the failure-to-warn is critical, but I wonder if there are some things that a label doesn’t cover, if you will.

Yeah, that’s true. The failure-to-warn is a big issue. Now for the users of this who are exposed occupationally, a warning is a big deal. Because if you’re told, “Hey, this could cause cancer,” or, “This is particularly dangerous, you want to make sure that you don’t get it on your skin, and you don’t inhale it. And you wear gloves and long pants and a mask,” that’s going to provide a degree of protection.

And they didn’t do that with this product. They said it’s safe as table salt, safe enough to drink; people are out there in sandals, spraying it. You know, Mr. Hardeman was spraying a backpack sprayer around, with no protective gear. So that’s the deception.

When it’s in the food, you’re not voluntarily consuming food with pesticide residues in them — or maybe you are, most people don’t think about that! That’s a different animal.

But again, if this had been classified differently by our EPA, it would not be allowed to be sprayed directly onto food crops; we wouldn’t have the types of residues that we’re having in food if it had been judged differently by the EPA.

And then I would just note that I know that some of the work is around, not just farmworkers, but farmworkers’ children, who, of course, have different levels of susceptibility from damage from this. So you really have to look at who all is coming in contact with it, and it’s not just necessarily the person spraying it.

Gosh, no, I mean, right. There have been studies where they find this in the urine of farmworkers’ children, even though the children are not out there working in the fields. And our government scientists have found that this chemical, because it’s so widely used, it’s in air samples; you see residues, traces of it, in rainfall; even it’s in the soil. It’s pretty ubiquitous, particularly in farm country.

Well, in the end, Vince Chhabria had some strong — or in the middle, I guess — he actually had some very strong language, in which he said:

There is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.

That is some pretty strong language. And, I have to say, I read it as a heads-up to the press as well.

CG: Exactly. And he also did say, in that same ruling, that there are “large swaths of evidence,” the scientific evidence, showing that this product could be considered carcinogenic, and that Monsanto’s been trying to ignore those large swaths of evidence. So it’s not just the manipulation, it is also the scientific evidence that’s brought these juries, twice now, to these multi-million-dollar verdicts.

Media coverage has taken some familiar turns, talking about the loss for Monsanto and Bayer, as though they were the harmed party here.

But then also, I think, just framing stories around lawsuits and trials affects how we hear them. So when you hear about how Dewayne Johnson was awarded $280 million in damages, and that was later reduced to about $80 million, and $80 million in Hardeman, you have to remember that Monsanto has almost endlessly deep pockets, and, you know, money doesn’t cure cancer. So just speaking of it in terms of, “Oh, they won,” doesn’t really give you an accurate picture of what’s happening here, I don’t think.

Definitely. And I spoke with the plaintiffs attorneys, Aimee Wagstaff and Jennifer Moore, yesterday, and we talked about that. You know, it’s great to say, “We won,” and there’s money, and this cancer victim will get a few dollars.

But it’s really a larger picture and a larger problem in this world, where we’re allowing these companies, a handful of very powerful companies, to really dominate the regulatory system, the political system, food policy matters, agricultural policy, in which we all are just exposed to pesticides and chemicals that can do harm to our health.

And analysts are expecting that a global settlement from Bayer to put an end to all of this litigation might be between $2 and $5 billion. $2 to $5 billion is not going to cripple Bayer, Monsanto’s new owner.

So if people really want to see change, and we really want to have accurate information, to be informed, reporters and others need to start paying attention to the big picture here, and what’s happening to our environment, to our health, and how this company and these revelations in these jury trials, what they mean, what they really mean.

And that’s what I think is more important about these trials, is not who wins or who loses or how much money. I think what’s important is that it puts a spotlight on a really important public policy issue, and brings to light a lot of secret information. Internal Monsanto documents and regulatory documents and scientific studies that the general public has not heard about, 40 years of information that’s finally coming to light in these jury trials.

We’ve been speaking with Carey Gillam, research director at US Right to Know. You can find their work on this and other issues online at USRTK.org. The book is Whitewash: The Story of a Weed Killer, Cancer and the Corruption of Science, and it’s out now from Island Press. Carey Gillam, thank you so much for joining us this week on CounterSpin.