Bayer will take another look at the use of glyphosate in lawn and garden products, including the possibility of replacing the chemical with new active ingredients, the company said in response to a court order rejecting a plan to address potential future Roundup litigation.

CEO Werner Baumann said on a conference call with investors and reporters Thursday that the company, which has been trying to settle current and future lawsuits alleging exposure to Roundup caused non-Hodgkin lymphoma, is still “committed to the Roundup brand in the U.S. residential lawn and garden market,” but nonetheless “will immediately engage with our partners to discuss the appropriate future path, including the future of glyphosate-based products for this market or the opportunities for alternative active ingredients that will continue to meet the needs of consumers.”

Glyphosate is the active ingredient in Roundup. 

“None of these discussions will affect the availability of glyphosate-based products in markets for professional and agricultural users,” he said. “We know that farmers continue to rely on Roundup containing glyphosate to deliver crops to market and practice sustainable farming by reducing soil tillage, soil erosion and carbon emissions.”

In addition, Baumann said the company “will create and promote a website with scientific studies relevant to Roundup’s safety and take steps to request that EPA approve corresponding language on Roundup labels.”

The lack of “any real warning label” was criticized by U.S. District Judge Vince Chhabria in his order Wednesday denying preliminary approval of a $2 billion plan to address potential future claimants. Chhabria said the plan contained "glaring flaws." 

“A label that alerts users to the contrasting positions taken by the EPA and [the International Agency for Research on Cancer] on the safety of glyphosate, points users to the literature produced by these two agencies, and reminds users to employ protective gear and take other appropriate precautions when spraying Roundup, would be a meaningful one,” Chhabria said in his order.

"It’s hard to imagine why a federal agency that believes a product is not dangerous would be unwilling to allow the producer of the product to include a purely factual label that might help limit liability in the future," the judge said.

IARC determined in March 2015 that glyphosate was “probably carcinogenic to humans,” a finding that has helped drive more than 100,000 claims against the company, including three cases that the company has lost in state and federal courts, resulting in awards — later sharply reduced — of more than $2 billion.

In the announcement of its “five-point plan,” Bayer also said it will continue to pursue legal appeals as it seeks to get a case before the Supreme Court on the issue of whether state-law claims are pre-empted by the Federal Insecticide, Fungicide, and Rodenticide Act.

“The company has strong legal arguments on its side, and a favorable decision by the U.S. Supreme Court by mid-2022 on cross-cutting issues like preemption or expert evidence would significantly reduce future liability risk,” Bayer said.

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In one case, Bayer has been accused of a “pay to appeal” scheme to aid its effort in getting a case before the Supreme Court. The company says criticism of its actions in the case has been mischaracterized.

Other elements of the plan include asking a science panel to look at evidence on glyphosate.  The “independent scientific advisory panel” would be made up of “external scientific experts,” the company said.

“The results would be released publicly and added to the website,” Bayer said.

The science panel was included in the proposed agreement rejected by Chhabria. He said in his ruling that the proposed class of potential future claimants would be making a “significant concession” by agreeing to the panel, whose conclusions could have been used in future trials.

The company also said it “will continue to be open to settlement discussions, as long as claimants are qualified and resolutions can be reached on appropriate terms.”

Bayer said it has resolved about 96,000 of approximately 125,000 current claims. Last June, the company announced a settlement of up to $9.6 billion for current claims and $1.25 billion for future claims. The figure for the second group was increased to $2 billion in February as Bayer tried to satisfy Chhabria’s concerns.

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