As Roundup Lawsuits Pile Up by the Thousands, Bayer Remains Defiant

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Already reeling from an avalanche of lawsuits, German agriculture and healthcare giant Bayer AG said on Wednesday the number of cases alleging the company’s glyphosate-based herbicides cause cancer more than doubled over the past three months, to 42,700.

Bayer has been sucked into a legal quagmire after it paid $63 billion last year for U.S. seeds company Monsanto, acquiring Roundup and other glyphosate-based weed killers as part of the deal.

Three U.S. juries have ruled against Bayer in cases brought by Americans alleging Monsanto’s popular herbicide caused their cancer, sending Bayer shares plummeting by 30% since the deal closed in the summer of 2018.

Bayer, which says there is extensive scientific research showing that glyphosate-based herbicides are safe and do not cause cancer, is appealing the rulings and is participating in mediation, ordered by U.S. District Judge Vince Chhabria. News reports have suggested that any settlement reached in the talks, mediated by attorney Kenneth Feinberg, could range from $6 billion to $20 billion. Some analysts estimate not quite that high, but still running into the billions of dollars.

The update on lawsuits dominated Bayer’s third-quarter results on Wednesday. In July, it had reported 18,400 Roundup/glysphosate legal cases. It ballooned to 42,700 lawsuits as of Oct. 11.

$50 million ad blitz

Chief Executive Werner Baumann said the increase in lawsuits was “clearly driven by a substantial surge in anti-Roundup advertising spending from the plaintiffs’ side.”

“They are estimated to have spent over $50 million on TV advertising alone in the third quarter,” he said on a call with journalists.

“The number of lawsuits tells us nothing about their merits,” he said, adding that the company plans to defend itself vigorously in court.

Law firms in the U.S. have been running TV ads advising people with cancer who have used glyphosate-based herbicides to consult them. Baumann said Bayer was engaging constructively in the mediation with a view to finding a solution, although he declined to comment on the size of any possible settlement. He said Bayer would only accept a mediation outcome that is “financially reasonable and is structured in a way that will bring the matter to a reasonable conclusion.”

That means Bayer wants any settlement to cover potential future claims, giving it assurances that there would be a cap on its liability.

This stance apparently calmed the markets. Shares in Bayer were up 2 percent in early trade on Wednesday, before retreating slightly.

EPA v. California

Any settlement of the lawsuits is complicated by conflicting official views of glyphosate.

In 2015, a World Health Organization body found that glyphosate could “probably” cause cancer in humans, although U.N. experts found the following year that glyphosate was unlikely to pose a cancer risk to humans exposed to it through their diet.

In April, the Environmental Protection Agency (EPA) said there were no risks to public health when glyphosate was used in line with recommendations and that glyphosate was not a carcinogen.

In the meantime, Roundup is no longer covered by a patent and other companies sell glyphosate-based weed-killers.

The EPA is at odds with the state of California, which has listed glyphosate as a substance known to cause cancer. In August, the EPA announced it would no longer approve product labels claiming glyphosate was known to cause cancer, calling this a false claim.

“It is irresponsible to require labels on products that are inaccurate when EPA knows the product does not pose a cancer risk. We will not allow California’s flawed program to dictate federal policy,” EPA Administrator Andrew Wheeler said in a statement at the time.

The rest of the business on solid ground

In 2017, the European Union narrowly approved the use of glyphosate for another five years but Austria has since moved to ban the chemical and Germany has said it will ban glyphosate from the end of 2023.

While public attention is focused on the glyphosate issue, Bayer said it had had a successful third quarter and was on track operationally. Group sales rose by 5.4% to 9.83 billion euros ($10.8 billion) in the quarter ended Sept. 30 and core profit (EBITDA) before extraordinary items grew by 7.5% to 2.29 billion euros.

It stood by its full-year targets for about a 4% rise in sales and a core profit of about 11.6 billion euros, although it tweaked them slightly to take account of recent asset sales.

That slightly beat the average analyst estimate for a core profit of 2.27 billion euros, based on estimates compiled by Vara Research, and shares rose nearly 2%.

Analysts at Barclays said the results represented “a solid operational result”.

The rise in glyphosate cases was a substantial step up though that should have been anticipated to some extent and may end up being taken as a positive sign if there was evidence of meaningful progress in the mediation, the bank said in an investor note.

The first lawsuit to go to trial alleging glyphosate causes cancer reached a verdict just two months after Bayer completed its takeover of Monsanto. In that case, a California jury found that Monsanto had failed to warn consumers of the alleged cancer risk posed by its products and ordered it to pay $289 million in damages, an award later reduced to $78 million. The case was brought by school groundskeeper Dewayne Johnson, who regularly used Monsanto herbicides and alleged that they caused him to develop non-Hodgkin’s lymphoma, a form of cancer.

Its shares have slumped since then, leaving it with a market capitalization of around $68 billion, only slightly higher than the price it paid for Monsanto.

Bayer has sold a series of assets this year in moves that will help it to slim down its $42 billion debt and to build a war chest in case a settlement of the U.S. glyphosate cases is reached.

In August, Bayer agreed to sell its animal health business to U.S. company Elanco Animal Health for $7.6 billion.

It has also sold its Dr. Scholl’s U.S. footcare business to investment firm Yellow Wood Partners for $585 million, its Coppertone sun care business to Germany’s Beiersdorf for $550 million and its 60% stake in German site services provider Currenta to a company controlled by Macquarie Infrastructure.

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