US Case: Johnson v Monsanto

In this high profile case the plaintiff succeeded in this claim and was awarded significant damages ($289m). The plaintiff worked as a groundsman between 2012 and 2014 and he was required to use Monsanto's Round Up herbicide in the course of his work and as a result he developed terminal Non-Hodgkin's Lymphoma. The plaintiff was exposed to Round Up through general use and as a result of an accident which saw him doused in the product. It was alleged that the main ingredient of Round Up, glyphosate, was known by Monsanto to be a carcinogen and that Monsanto conspired to keep the knowledge of the carcinogenic effect secret.

As with the talc cases, the scientific evidence in support of the link between glyphosate and cancer is not clear cut and the case was decided by a jury based on the evidence allowed by the court. The IARC states that glyphosate is a "probable carcinogen" however the studies on which this conclusion is based is not without controversy. Whilst the IARC may say that glyphosate probably causes cancer it cannot say whether the particular cancer suffered by the plaintiff in this case was so caused. It should be noted that there opined to be a short latency period (2 years) between the first exposure to glyphosate and the development of symptoms.

Glyphosate was developed in the 1970s as a herbicide and was first approved for use in 1974, since then it has gone on to be one of the most widely used herbicides on the planet. There are reported to be over 8,000 claims pending against Monsanto regarding the use of Round Up. A further class action has also been filed against General Mills in the US alleging that a number of cereal products contained traces of glyphosate at higher levels than the recommended safety standard.

UK EL Claims

The use of glyphosate will be widespread in the farming and municipal sectors. In farming glyphosate is applied to crops in the field and is often applied to the harvest in store. Based on information from the Soil Association the use of glyphosate has increased by some 400% over the past 20 years in the UK. The routes to exposure are mainly confined to the spraying operation or the mixing of the product in preparation for spraying.

Glyphosate will also be used by council workers and other groundsmen in the course of their work. It is likely that the product would be used in smaller quantities than on farmers and without the risk of commercial sprayers or the need to mix the product.

The use of glyphosate will be covered by the Control of Substances Hazardous to Health Regulations. The risk of exposure must therefore be avoided or whether is not possible reduced so far as reasonably practicable. The use of appropriate control measures i.e. LEV or RPE ought to be considered. If appropriate control measures are in place and adhered to then the risks of exposure and any harmful effects are low.

In addition, whilst it was alleged in the Johnson case that Monsanto knew of the cancer risks of glyphosate (something Monsanto denies) it would be hard for a claimant in the UK to establish that a reasonable employer knew or ought reasonably to have known of such a risk. The scientific evidence remains inclusive as to whether there is a causative link between glyphosate exposure and an increased cancer risk.

This article is co-authored by Carolyn O'Connor Partner Wilson Elser