Welcoming the downfall of glyphosate: a first step on a long, winding road to justice
Hilal Elver & Melissa Shapiro/ Last updated 4 September 2018
Since a California court’s landmark verdict on August 10, Monsanto’s notorious weed killer “Round up Ready” has faced heightened public scrutiny for its carcinogenic effects. A jury found that Monsanto knew or should have known that Glyphosate, active ingredient of Roundup causes cancer based on available scientific evidence. The company’s failure to warn plaintiff Mr. DeWayne Johnson, a school groundskeeper and regular Roundup user, of this risk, led to a $289 million award to Mr. Johnson. With approximately 8,000 other plaintiffs having filed similar claims against Monsanto in state courts and federal across the U.S., this ruling is unlikely to be the last of its kind. This is troubling news for Bayer, a German conglomerate that bought Monsanto in an attempt to consolidate power of the big six agro- chemical companies, whose share value has dropped by 11% since the Johnson decision.
On the heels of this verdict, the Environmental Working Group revealed that independent laboratory tests found glyphosate in all but two of 45 sampled products made with conventionally grown oats. While disturbing, this result is far from surprising; an estimated 18.9 billion pounds or 8.6 billion kilograms of glyphosate has been sprayed worldwide between 1994 and 2014, indicating a 15-fold increase since the introduction of Monsanto’s “Roundup Ready” crops in 1996. This is a significant increase in such a short time.
Glyphosate is the world’s most widely used herbicide, and its impacts on human health has been the subject of international debate for years. In 2015, the World Health Organization’s International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic to humans,” a conclusion that Monsanto has vehemently rejected. Despite supporting evidence that glyphosate causes non-Hodgkin’s Lymphoma and lung cancer in humans, the European Food Safety Authority (EFSA), German Federal Institute for Risk Assessment (BfR) and the U.S. Environmental Protection Agency (EPA) also disagreed with the IARC classification.
The verdict in Mr. Johnson’s case, however, indicates that the scale has tipped in IARC’s favour, and that public opinion is decisively on the side of science. Immediately following the verdict in Mr. Johnson’s case, Monsanto’s vice-president acknowledged the impact of the IARC evidence in influencing the jury’s deliberations, suggesting that expert scientific testimony in favor of Monsanto presents a significant issue for Monsanto’s defense. Earlier this summer however, a federal judge in California overseeing the consolidated litigation of more than 450 lawsuits against Monsanto ruled that expert witnesses can claim in court that Monsanto’s Roundup weed-killer causes cancer, opening the door for more trials and perhaps verdicts like Mr. Johnson’s.
Beneath these groundbreaking headlines lies a greater message: perpetuating persistent exposure to a carcinogenic product without adequately warning of the risks is a violation of the public trust, and more importantly, a violation of human rights. In January 2017, I presented to the United Nations General Assembly a clear account of the impacts of global pesticide use on the human right to food. Between 1 million and 41 million people are exposed to pesticides annually, both through direct contact and indirect exposure via food, water, and air. Much of this exposure is likely attributed to glyphosate considering the wide use of this particular chemical.
The human right to adequate food, which is enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, includes the right to food that is free from adverse substances. Even under the narrowest interpretation of these authorities, food that is contaminated by pesticides is not adequate food, and the estimated impacts on global populations demonstrates a clear violation of the right to food, as well as the right to health, and a fundamental failure of States to act consistent with State obligations to respect, protect, and fulfill the rights to which every human is owed.
The Johnson verdict exemplifies that the United States has the tools necessary to right wrongs, and to provide redress when human rights are violated, even though the United States adamantly refuses to formally recognize economic, social and cultural rights, including right to adequate food.
This verdict has also awakened the sense of obligation worldwide, with especially leaders in Europe expressing support for the decision and calling for protective measures. France’s Environment Minister Nicolas Hulot, recognized the decision as a watershed moment, confirming the “dangerousness of glyphosate” and “the end of arrogance for Bayer and Monsanto.” Italy’s Deputy Prime Minister, a spokesman for the German Environment Ministry, and chair of the European Parliament’s special committee on the EU pesticide authorization process offered similar statements.
While these global reactions indicate a movement towards regulatory reform that will protect future generations from glyphosate, such reform will not provide retroactive relief to those who have experienced years of persistent exposure. A decision by a Brazilian court on September 3 to overturn an injunction banning glyphosate products further suggests that we have a long way to go before glyphosate is a threat of past.
It is therefore important to recognize the limitations of the groundbreaking California verdict and what it does not do–not only for Mr. Johnson, and other litigants, but also for those who continue to silently suffer:
The verdict does not remove glyphosate from the shelves.
The verdict does not require Monsanto to label Roundup as carcinogenic or to impose restrictions on its use.
The verdict does not provide financial relief for the millions who have been exposed to glyphosate or pave the way for those who cannot access justice in the same manner as Mr. Johnson.
Of the millions impacted by persistent exposure to glyphosate, the overwhelming majority face significant impediments to judicial relief. Many countries do not impose tort liability or recognize the right to adequate food, free from pesticides. Finding Monsanto responsible in other countries for extraterritorial violations raises additional challenges. Even if the avenue for redress is available, the populations most vulnerable to pesticide exposure around the world, including indigenous peoples, women, and children, are often unaware of their rights or live in remote areas without access to courts..
As I will present in my upcoming report to the UN General Assembly this October, agricultural workers are among those most vulnerable to rights violations, including exposure of hazardous chemicals, despite the critical role played in global food systems. In the United States, for example, where thousands of diverse plaintiffs have brought actions against Monsanto, agricultural workers without formal contracts, either due to seasonal arrangements or lack of immigration status, are less inclined or completely silent to pursue such actions for fear of loss of employment, or the increasing reality of deportation.
We must, therefore, consider international intervention to account for divergent levels of protection at the national level. Lack of harmonized standards result in the extensive use of toxic, and even banned pesticides in developing countries. Studies confirm that industrialized countries will ban high hazardous pesticides and subsequently export the substances to developing countries, where they are sold as cheaper alternatives. If pending litigation in the United States continues to find Monsanto liable, it is more likely that state or federal authorities will restrict or even ban Roundup, perhaps increasing its presence in other countries. It is necessary to develop an international agreement that will ban the export and use of dangerous chemicals, such as glyphosate, in order to ensure that protections for one population do not undermine the health of others.
We must also rethink our current dependence on glyphosate and other toxic chemicals, particularly in our global food systems. The assertion promoted by the agrochemical industry that pesticides are necessary to achieve food security is not only inaccurate, but dangerously misleading. A rise in organic agricultural practices in many places illustrates that farming with less or without any pesticides is feasible. Studies have indicated that agroecology, which promotes agricultural practices that are adapted to local environments and stimulate beneficial biological interactions between different plants and species, delivers sufficient yields to feed the entire world population.
It is for these reasons that we cannot accept Mr. Johnson’s verdict as a silver bullet. Rather, we must reiterate the obligation of States to “take steps…by all appropriate means,” to ensure the full enjoyment of human rights and to offer administrative, quasi-judicial, and judicial mechanisms that provide adequate, effective, and prompt remedies when those rights are violated.