Daily Journal published version here
By Kyla Christoffersen Powell
California is the center of innovation for the U.S., with world-class universities, cutting edge research and development, and many of the best and brightest entrepreneurs. Fittingly, the state also as a whole respects science as a sound basis for problem-solving and decision-making.
This is why it’s disappointing that recent California court decisions in Johnson v. Monsanto, 52 Cal. App. 5th 434 (2020) go against this science-based approach. Both the trial and appellate courts largely discounted the extensive body of peer-reviewed science and instead relied upon a narrow and isolated report that vilified a widely studied, safe product called glyphosate, commonly known as Roundup.
Most Americans know Roundup as the household product used to kill the weeds in sidewalk cracks or flower beds. But its applications don’t stop there. Over the last 40 years, Roundup has revolutionized the agricultural industry by enabling farmers to combat harmful weeds without damaging their own crops. This allows them to grow more food sustainably by reducing soil tillage, erosion, and carbon emissions.
For example, one study estimates between 26 to 40 percent of potential crop production is lost each year because of weeds, pests, and diseases and could easily double without crop protection. Another study states that in 2014 alone reducing tillage in farming practices, facilitated by glyphosate, decreased carbon emissions by an amount equivalent to removing nearly two million cars from the road.
Despite the advantages it offers, Roundup has been the subject of the Johnson suit and tens of thousands of other lawsuits alleging negative health effects based on inconclusive, fringe studies. The primary study relied upon in Johnson was issued by the International Agency for Research on Cancer (IARC) in 2015. It deemed glyphosate “probably carcinogenic” and is the same organization that has also found alcoholic beverages, meat, cell phones, and coffee (at least until recently) to be cancer-causing.
Subsequent analyses by regulators around the globe, however, still overwhelmingly maintain that Roundup is safe. This includes a report released in 2016 by the Joint Food and Agricultural Organization and World Health Organization Meeting on Pesticide Residues which examined the IARC study.
The story of the plaintiff in the Johnson case is heartbreaking, but we look to courts to make objective decisions about who is at fault and deserves punishment based on the law, facts, and evidence. The Johnson jury concluded that Roundup should have been labeled as cancer-causing and awarded almost $290 million in damages to the plaintiff. When the court system caters to an outlier study and disregards decades of diligent, voluminous research, the system or the law, or both, are not working.
To put this into perspective, consider many climate scientists who agree that humans are causing climate change. California policy makers embrace these studies and actively promote policies that combat or mitigate its causes. There are still approximately three percent of scientists, however, who disagree. Now imagine this fraction of dissenting research completely nullified the other 97%. Not only would the state approach its policy and regulatory framework differently, but it would also be far less advanced in renewable technology developments.
California is a national leader in consumer protections with a long history of holding companies accountable for producing safe products. It should laud the vast amounts of research conducted over the last four decades that have gone into ensuring the safety of the Roundup product, including more than 800 scientific studies on glyphosate and glyphosate-based herbicides submitted for examination by regulators like the U.S. Environmental Protection Agency.
Many leading global regulators, such as the European Food Safety Authority and the European Chemical Agency, and regulatory authorities for countries like Germany, Australia, Korea, Canada and New Zealand have also looked at the research and confirmed glyphosate is safe.
The weight of the science and years of research conclude the herbicide can be used safely as directed and is not carcinogenic.
The Johnson rulings, which ignore substantial scientific evidence, send the wrong message to pioneering researchers and companies that, no matter the extent of grounded research and compliance with exacting government standards, they will always have high exposure to crippling liability in California courts if there is any marginal conflicting view. This could chill pharmaceutical, medical, and other technological progress at a time when we should be encouraging innovation to combat pandemics, like the one we currently face, cure infectious disease or curb climate change.
It is also problematic the Johnson rulings allowed exorbitant damages awards, although reduced at the appellate level. These awards incentivize money-driven plaintiffs’ attorneys to go after companies making critical technological advancements. The Johnson rulings have already spurred plaintiffs’ attorneys to bring many more copycat lawsuits.
If our Golden State wishes to maintain its status a technological leader, our legal system must recognize and reward — not punish — those who have innovated according to the rigorous scientific standards that we value and expect.
Kyla Christoffersen Powell is president and CEO of the Civil Justice Association of California.