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Ninth Circuit Revives Putative Class Action Against Monsanto, Bayer Over Weed Killer
Opinion Says Consumer-Protection Claims Were Improperly Dismissed
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday revived a putative class action against Monsanto Company and its parent, Bayer CropScience LP, alleging that they violated federal and California consumer protection laws by selling a concentrated version of the popular weed killer Roundup without disclosing that it contained an ingredient with a dangerous impurity that would increase in volume over time, rendering the product unsafe for use.
Circuit Judge Morgan Christen, as well as Senior Circuit Judges Richard C. Tallman and Richard C. Clifton, signed the memorandum opinion reversing a judgment of dismissal of the class action complaint based on a defense motion filed under Federal Rule of Civil Procedure 12(b)(6), “failure to state a claim upon which relief can be granted.”
They found that the allegations, asserting that the amount of a harmful impurity, N-Nitrosoglyphosate (“NNG”), in the product will increase to unsafe levels over time, were adequately supported.
Christen, Tallman, and Clifton noted that the plaintiffs distinguish their case from the “many personal injury actions” that have been filed over Roundup products because this action seeks recovery only for “economic injuries allegedly suffered at the time of purchase” and does not allege that any party’s health was harmed by using the herbicide.
Plaintiffs Scott Koller, Tim Ferguson, Ruby Cornejo, and John Lysek, all California residents, filed the class action complaint in 2022 against Monsanto and Bayer.
They assert, on behalf of themselves and a class of similarly situated consumers, claims under California’s Song-Beverly Consumer Warranty Act, Unfair Competition Law, false Advertising Law, Consumer Legal Remedies Act, and the federal Magnuson–Moss Warranty Act. Other claims include fraud and unjust enrichment.
Allegations in Complaint
In the first amended complaint (“FAC”), they allege:
“This case relates to the concentrated forms of Roundup that consist of more than 40% glyphosate in sizes at or below 6.8 lbs (the “Products”).
“The amount of glyphosate in a pesticide matters. N-Nitrosoglyphosate (“NNG”) is an impurity inherent to glyphosate. As a result, increasing glyphosate increases the NNG impurity as well. Impurities are…’chemical compounds formed, during synthesis of the active ingredient, or during formulation or storage.’
“NNG belongs to a class of chemicals called nitrosamines. Nitrosamines are so dangerous that The Environmental Protection Agency (“EPA”) presumes them to be carcinogenic when they occur at certain levels. EPA based its approach on testing that found that 80% of the nitrosamines tested are carcinogenic.”
Asserting that the amount of NNG in a glyphosate product “grows over time,” when the liquid is exposed to everyday environmental compounds, they contend that the EPA and the company agreed that 1 part per million (“ppm”) would be the certified limit for NNG in all Roundup products.
However, the plaintiffs contend that Monsanto conducted a study that they say shows that “the Products could develop levels of NNG in excess of EPA’s regulatory limit, [and] revealed that NNG can exceed an eye-popping 80 ppm, more than 80 times EPA’s regulatory limit in a matter of minutes.”
Senior District Court Judge Maxine Chesney of the Northern District of California granted the defendants’ motion to dismiss, holding that the operative complaint fell short of the plausibility requirement as to two allegations—that NNG in an amount above 1 ppm is carcinogenic and that the products purchased by the plaintiffs have formed NNG levels above that threshold.
The panel remarked that “the FAC contained sufficient allegations to make plausible the claim that NNG levels above 1 ppm pose a serious safety hazard.”
They acknowledged that “[i]t is true that there are no applicable regulations that establish a firm 1 ppm limit for NNG” and that “the establishment of a 1 ppm limit for NNG in consumer products does not by itself establish that an NNG level above 1 ppm is necessarily carcinogenic or otherwise unsafe,” but said:
“The [operative complaint] alleged, though, that Monsanto’s own corporate representative testified that Monsanto is not aware of any regulatory body in the world that allows more than 1 ppm of NNG in a glyphosate-based herbicide. It alleged that several identified statements by the EPA support the assertion that there should be concern for products containing NNG levels above 1 ppm. The FAC also explicitly referenced an expert declaration by Dr. Charles Jameson, a chemist and environmental toxicologist, which concluded, with some measure of scientific analysis and support, that NNG ‘poses a safety hazard to customers at levels of 1 ppm or higher.’ ”
The jurists added:
“To be clear, we do not hold that the submission of an expert opinion will always be enough to establish plausibility, but in this instance, when combined with other factual allegations, the FAC contains enough to make the relevant contention plausible.”
Life of Product
Turning to the allegation that the amount of NNG will exceed 1 ppm during the life of the product, Christen, Tallman, and Clifton noted that the “[d]efendants fairly point out” that the complaint “did not allege facts to establish that any of the products actually purchased by any of the Plaintiffs, or to their knowledge by any other consumer, contained NNG above the 1 ppm level.”
However, they opined:
“[T]he [operative complaint] alleged other facts to support this contention, including that exposing glyphosate to nitrites could cause a chemical reaction that creates NNG, and that Monsanto employees acknowledged as much. The FAC alleged that containers of the products stored by consumer purchasers in garages posed risks of exposure to conditions, such as engine exhaust, humidity, and heat, which could promote the formation of NNG. Further, Plaintiffs alleged that Monsanto had discovered NNG at levels above 1 ppm in relevant products in its own possession, albeit in forms that might not closely resemble what was purchased by Plaintiffs.”
The judges commented that “if the case continues, the parties can be expected to develop and present more substantial evidence on the question,” but found that the allegations in the plaintiffs’ pleading are sufficient to withstand a motion to dismiss.
Claims were also asserted against The Scotts Company LLC, which markets and sells various forms of the Roundup product line. The Ninth Circuit affirmed the dismissal of the claims against The Scotts Company, concluding that they had failed to show that “Scotts had unbridled control over…allegedly unlawful practices.”
The case is Koller v. Monsanto Company, 24-43.
Last Friday, a Georgia jury handed down a $2.065 billion verdict against Bayer in a lawsuit alleging that the use of Roundup caused the plaintiff’s cancer. John Barnes was awarded $65 million in compensatory damages, with the remaining amount reflecting punitive penalties against the agrochemical giant.
Despite a slew of lawsuits by plaintiffs who say that the herbicide caused them health problems, Bayer has continued to dispute claims that the product causes cancer. The company says it will appeal Friday’s ruling.
Bayer has removed glyphosate from Roundup products sold for residential use, but some consumers say bottles containing the chemical remain on store shelves.
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