LINKS TO EUROPEAN COURT JUDGEMENTS ON NEONICOTINOID
PESTICIDES AND PRECAUTIONARY PRINCIPLE

The Reuters report by Tina Bellon of 10 August 2018 ‘Monsanto ordered to pay $289 million in world’s first Roundup cancer trial’ marks a significant milestone in consideration of the possible carcinogenic effects of one of the world’s most widely used chemicals and herbicides.

As the report makes clear, Monsanto, now owned by Bayer AG, was found liable by a jury for the cancer suffered by a school groundsman, Dewayne Johnson, which they held to be caused by the company’s glyphosate-based weed-killers. Some 5,000 similar lawsuits across the USA may now be energised and emboldened by the initial findings. The jury found that Monsanto had failed to warn Johnson and other users of the cancer risks of their chemicals. The company has said that it will appeal the jury’s finding.

The issue of the possible risks of cancer from the extensive use of glyphosate is bitterly disputed. In 2015, the International Agency for Research on Cancer, the WHO cancer agency, found that glyphosate is “probably carcinogenic to humans”.

However, the US Environmental Protection Agency considers glyphosate safe to use, and the European Food Safety Authority and European Chemicals Agency have found no link to cancer in humans.

Re-licensing of glyphosate at the European level has been contentious, and subject to some time limits imposed by concerned politicians at Member State level. However, farming organisations, particularly the UK’s National Farmers Union, strongly advocate its continued and widespread use. According to some studies (2017, Oxford Economics, cited by BBC 11 August 2018), 5.4 million acres of farmland across Britain are treated with glyphosate annually. This explains the fields devoid of vegetation, sprayed with glyphosate to kill all weed growth before re-planting, which are a feature of the British countryside, and which appear to be contributing to the precipitate decline in some British bird species.

Is it justified to continue to spray this powerful herbicide across whole fields in this way? Apparently not. Defra’s own Chief Scientist Ian Boyd stated in an article in 2017 that the assumption by regulators around the world that it is safe to use pesticides at industrial scale across landscapes is false; that the lack of any limit on the total amount of pesticides used and the virtual absence of monitoring of their effects on the environment means it can take years for the impacts to become apparent. How is that consistent with the NFU’s advocacy of unlimited use of glyphosate?

The timing of the jury’s finding in this Monsanto case is very significant, because of its possible relationship to the strong re-statement of the precautionary principles by the Court of Justice of the European Union in recent judgements on neonicotinoid pesticides.

In judgements on three joined cases [T-429-13, T451-13, T584-13] issued on 17 May 2018, the General Court of the European Union confirmed the validity of restrictions introduced at EU level in 2013 against three neonicotinoid insecticides, because of the risks those substances pose to bees.

The active ingredients restricted were clothianidin, produced by Takeda Chemical Industries and Bayer Crop Science, thiamethoxam, made by Syngenta, and imidacloprid, made by Bayer Crop Science.

The Court dismissed the challenges brought to the EU legislative restrictions by Bayer Crop Science AG and Others, and Syngenta Crop Protection AG and Others, the “Others” in both cases including the UK National Farmers Union ‘NFU’.

However, in the third case the Court largely upheld the action brought by BASF, and annulled the restrictions on the use of the pesticide fipronil, since they were imposed without a prior impact assessment by the European Food Safety Authority ‘EFSA’.

In all three cases, the Court made a strong and clear re-statement of the importance of the ‘precautionary principle’, which is firmly embedded in European Union environmental law, and due to be re-enacted in UK law after Brexit by means of section 16 of the European Union (Withdrawal) Act 2018, and the new proposed Environmental Principles and Governance Bill for England.

The greater the evidence, and the stronger the rulings as to the carcinogenic effects of glyphosate, the higher the presumption will be in favour of the application of the precautionary principle to the use of glyphosate in agricultural, roadside and municipal applications. If Defra’s Chief Scientist is correct, we need an urgent re-appraisal of the law and regulation applying to both pesticides, herbicides and agricultural chemicals.

For further information, or to receive a copy of the recent articles written on the European Court’s neonicotinoid judgements, please contact William Wilson at info@wyesideconsulting.com, tel. +44(0)1225-730-407