The alleged health and environmental risks associated with the use of glyphosate, a chemical used widely for agricultural weed-control in Australia and throughout the world, have generated controversy in Australia in recent years.
Recent litigation in the US regarding the health effects of glyphosate may generate further discussion and concern around the classification and status of glyphosate in other jurisdictions including Australia.
The US decisions
There have been two Court decisions in the State of California where exposure to a glyphosate-based weedkiller was held to be a substantial factor in causing non-Hodgkin’s lymphoma (NHL). In both instances, the product concerned was ‘Roundup’, developed by Monsanto, a subsidiary of German pharmaceutical company Bayer.
In November 2018, Monsanto was found liable to Dewayne Johnson, a groundskeeper who had been habitually exposed to Roundup during the course of his employment. The Court found that regular use of Roundup had caused Johnson’s illness and that Monsanto knew of the product’s potential health risks, and acted ‘with malice or oppression’ by failing to warn consumers.
Originally, the San Francisco jury awarded Johnson approximately $US250 million in punitive damages and approximately $US39 million in compensatory damages, but this was reduced, on appeal to approximately $US78 million.
More recently, on 19 March 2019, a jury similarly found that exposure to Roundup from spraying herbicides on weeds for several hours a day while working for a school was a substantial factor in the NHL suffered by Edwin Hardeman. The jury awarded $US81 million against Bayer. This amount comprised $US5.9 million in compensatory damages and $US75 million in punitive damages. Mr Hardeman alleged that ‘Roundup's design was defective, that the product lacked sufficient warning of potential risks and that Monsanto had been negligent in not warning about risks.’
There are 11,200 lawsuits anticipated against Monsanto, with the next hearing anticipated to commence in the State of Missouri sometime this year.
The Australian perspective
While there have not yet been any personal injury claims in Australia concerning glyphosate, the recent American litigation has provoked national discussion on the potential health impacts of the chemical.
Roundup has been classified as safe by the Australian Pesticides and Veterinary Medicines Authority (APVMA), a Federal statutory agency responsible for the registration of agricultural and veterinary chemical products into the Australian marketplace.
The International Agency for Research on Cancer’s (IARC) recently concluded that glyphosate is ‘probably carcinogenic to humans’. In response, APVMA published a report on the human health risks of glyphosate, which concluded that it does not pose a cancer risk to humans if used according to label instructions.
Recent media analysis on the safety of the chemical also cast doubt upon the integrity of APVMA’s review processes amidst allegations of industry links.
As a result, the Australian Senate referred to the Rural and Regional Affairs and Transport References Committee (RRATR Committee) a range of issues concerning the independence of AVPMA in relation to its findings on the safety of glyphosate.
That Committee’s February 2019 report concluded that APVMA’s funding sources did not ‘allow for industry to unduly influence the decisions of the regulator’. It also observed that its methodology was ‘robust and based on sound scientific principles’. Many of the concerns about APVMA’s assessment raised with the RRATR Committee were addressed by APVMA in its material relating to the decision. However, the Committee’s report has not closed down the debate in Australia, with the Cancer Council calling for further research and investigation into the substance and its potentially causative relationship with NHL.
In the wake of the recent litigation in the United States, it is possible we may see similar cases here, and perhaps even a class action. The risk of such claims, however, is relatively low. The judgments in the United States are notable for their substantial punitive awards. While punitive damages are available in Australia, they are much rarer, and generally far more conservative. Establishing causation in this type of case can be very challenging, and plaintiff class action specialists may well balk at this sort of claim because of the lack of commonality in the claims of the group members – each class member is likely to have his or her own story to tell on exposure. Time will tell.