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Glyphosate Update

Over the last several weeks there have been some significant updates concerning litigation involving glyphosate. NALP would like to take this opportunity to provide some updates and context for what this means for the landscape industry.

Glyphosate Settlement  

Bayer and Attorneys representing a class of petitioners reached a second agreement to settle pending litigation involving Roundup products containing glyphosate alleging Bayer failed to adequately warn that glyphosate may cause non-Hodgkin’s lymphoma (NHL). The settlement was similar to one proposed last year and would require Bayer to pay $2 billion to set-up a fund for petitioners to access and would require all future litigation involving round-up to go through a scientific advisory panel and would also prohibit future litigants from seeking punitive damages from Bayer. 

**It is important to note that the litigation in play alleges not necessarily that products containing glyphosate in fact cause NHL but rather the litigation asserts that Bayer failed their duty to warn via a label that the product may be carcinogenic.** 

Last Wednesday, a federal judge in San Francisco refused to bless the proposed settlement.  In reviewing the judge’s ruling it is clear that he placed an emphasis on the IARC conclusion that glyphosate may be carcinogenic despite the U.S. EPA and other national regulatory conclusions.  The judge stated: 

“A label that alerts users to the contrasting positions taken by the EPA and [the  International Agency for Research on Cancer] on the safety of glyphosate, points users to the literature produced by these two agencies, and reminds users to employ protective gear and take other appropriate precautions when spraying Roundup, would be a  meaningful one,”  The judge’s ruling sends the parties back to the drawing board, to continue the discussion about a settlement.  In the meantime, more than 5000 cases are expected to continue to move forward in various federal and state courts throughout the nation. 

Bayer Announcement – Review of Glyphosate in Lawn & Garden Markets 
Following the court decision, Bayer announced that they will immediately begin a review of products containing glyphosate in the lawn and garden segment and look towards alternative active ingredients that may be used for do-it-yourself/homeowner uses.  Bayer specifically stated: “we remain committed to the Roundup™ brand in the U.S. residential lawn and garden market and will immediately engage with our partners to discuss the appropriate future path, including the future of glyphosate-based products for this market or the opportunities for alternative active ingredients that will continue to meet the needs of consumers, which has been trusted by consumers for decades. 

None of these discussions will affect the availability of glyphosate-based products in  markets for professional and agricultural users.” 
EPA Glyphosate Litigation
Recently, EPA filed a response brief in NATURAL RESOURCES DEFENSE COUNCIL, et al. v. UNITED STATE ENVIRONMENTAL PROTECTION AGENCY, which is a lawsuit brought by NGOs against EPA based on their most recent reevaluation of glyphosate in which EPA once again determined that glyphosate was not carcinogenic.  (NALP is an intervener in the case along with several other pesticide applicator trade associations, in support of EPA and FIFRA). The litigation was brought during the Trump Administration and after Biden was inaugurated the Administration requested an extension to respond to the petition and it was unclear at that point how the Biden Administration would view EPA’s determination.   But we now know that EPA is continuing to defend their position that glyphosate is not carcinogenic stating in their response brief: “EPA reasonably concluded that glyphosate is not likely to be a human carcinogen and that it does not pose human-health risks of concern. See Argument II. This conclusion is the result of a decade of analysis, review by a scientific advisory panel, revisions in light of that review, and EPA’s expert judgment on how the evidence should be weighed. None  of the scientific advisory panel believed that glyphosate should be categorized as a likely  human carcinogen.” NALP will continue to engage with the litigation as an intervener and will provide updates as they develop. 
At this stage Round-up and products that contain glyphosate continues to be approved for use by the EPA and all 50 state pesticide lead regulatory agencies.  NALP is providing this information not in support of glyphosate per se but in support of the EPA and the FIFRA process.  NALP wants to ensure that landscape professionals have the most current information at all times and we will continue to advocate for all members to have the choice of which federally and state-approved products are most appropriate for their organization and their customers.

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