A judge’s Monsanto ruling affects both the law and the economy

This week, Monsanto, an affiliate of Bayer AG — a German multinational life sciences company, and one of the largest pharmaceutical companies in the world — settled thousands of current U.S. lawsuits over its weed killer, Roundup. The settlements are with consumers who argue that the herbicide in Roundup, glyphosate, caused their non-Hodgkin’s lymphoma cancer. Monsanto and Bayer maintain that the extensive body of science and regulatory approvals show there is no such causal link. And yet, at the same time, Monsanto is working to obtain approval for a class settlement of potential future claims. But U.S. District Judge Vince Chhabria of California’s Northern District rejected Bayer’s original request for a settlement. 

As a survivor of non-Hodgkin’s lymphoma, I’ve taken a personal interest in this case. And when I served as U.S. ambassador to Germany from 2018 to 2020, I was proud to reiterate the United States’s support of Bayer’s facts-based position regarding the use of glyphosate. 

As the Environmental Protection Agency (EPA) stated in an August 2019 letter, EPA scientists performed an independent evaluation of available data since the International Agency for Research on Cancer’s (IARC) classification to reexamine the carcinogenic potential of glyphosate. The scientists concluded that glyphosate is “not likely to be carcinogenic to humans.” The EPA considered a more extensive dataset than IARC, including studies submitted to support the registration of glyphosate and studies identified by EPA in the open literature as part of a systematic review.

Given the EPA’s determination that glyphosate is “not likely to be carcinogenic to humans,” the agency then concluded that the California Proposition 65 warning language placed on the herbicide constituted a false and misleading statement. The EPA said it could no longer approve labeling like the kind done in California, because it included false warnings against products containing glyphosate. This was science-based public policymaking at its best: A decision on the safety of food and agricultural products was made with data and science — not emotion or political activism.

So why would Judge Chhabria, without citing any evidence to the contrary, decide to overturn this fact-based decision from the U.S. government? Because of politics.

Chhabria’s ruling sets a harmful precedent. His opinions are akin to the kind of system we see in China, where facts are routinely ignored so that powerful patrons of a political party can benefit.  As a diplomat in Europe, I regularly argued that European business leaders should invest more in the United States and avoid dealing with a Chinese system where rules-based, fact-based decisions are obsolete. European and other foreign businesses have to be reassured that they will get fair, rules-based and data-based hearings in American courts, without interference by judicial or political activism. 

Tort reform would go a long way toward getting rid of popular emotion in judicial rulings. But even if progress is made on tort litigation, judges will remain the ultimate trustees of the integrity of the U.S. justice system, and it is up to them to protect the rightful place of evidence and data at the center of rulings. 

The biggest beneficiaries of political rulings like those given by Judge Chhabria are, of course, the litigators who give generously to Chhabria’s Democratic Party. The lawyers representing customers who argue, against the evidence, that glyphosate is carcinogenic to humans are making off handsomely; they can ignore science, play on emotion, and count their cash. As a cancer survivor, I cannot stand to see the endless advertisements running on cable news trolling other survivors of non-Hodgkin’s lymphoma to join their class-action lawsuit. It is not only unscientific, it is offensive and immoral.

The more district court judges prove they cannot be trusted to protect the integrity of evidence-based rulings, the more politicians and the Department of Justice will start getting involved. That is not a situation that a healthy democracy with the rule of law should want to see. Nor will it bode well for the ability of the U.S. economy to attract foreign direct investment, on which Americans rely heavily for job creation.

If Judge Chhabria has evidence about glyphosate that contradicts the government’s sound research and conclusions, he should produce it immediately. If not, he should throw out the Bayer lawsuits completely, rather than send the case to a jury. At stake is more than just the fortunes of lawyers and consumers of Roundup: It is the integrity of the U.S. courts and the ability to keep our economy strong.  

Richard Grenell is a senior fellow of Carnegie Mellon University’s Institute for Politics and Strategy. He is a senior adviser on LGBT outreach to the Republican National Committee. He served more than 10 years in the U.S. Department of State, including as U.S. ambassador to Germany, 2018-2020, and as a spokesman at the United Nations, and served briefly as acting director of national intelligence (DNI).