Judge denies plaintiffs’ attempt at gag order on Monsanto's Roundup safety messaging

By Rich Peters | Apr 9, 2019

OAKLAND - A judge presiding over the latest trial involving Monsanto's Roundup has denied plaintiffs' attempt at stifling the company's messaging over the herbicide's safety.

“Plaintiffs have not met their burden to show that Monsanto’s speech presents an actual threat of imminent prejudice to Plaintiffs’ right to a fair trial nor shown that there are no viable alternatives to a prior restraint on Monsanto’s speech,” Alameda County Superior Court Judge Winifred Smith ruled April 4.

Alva and Alberta Pilliod are the latest plaintiffs to take on Monsanto for its alleged carcinogenic glyphosate based product in a trial that got under way last week.

Their attorneys sought a motion for temporary injunction, attempting to halt any advertising by the defendant related to safety, testing and studies of Roundup.

Bayer, which acquired Monsanto last year, asserted that it clearly has a right to get its messages across to the public, just as plaintiff lawyers have "bombarded" the Bay Area with theirs.

"Monsanto’s market research has indicated that negative public relations activities following the IARC (International Agency for Research on Cancer) classification, California’s listing of glyphosate under Proposition 65, and litigation-related advertising have negatively impacted the Roundup brand and sales,” Monsanto claimed in its opposition brief filed April 3.

“It is therefore imperative that Monsanto communicate - consistent with its First Amendment rights - to its retailers and customers across the country accurate information about the scientific and regulator record supporting the safe use of glyphosate and Roundup products.”

Monsanto argued that it was plaintiffs who had "preconditioned" the jury pool with more than 2,000 anti-Roundup ads on multiple media platforms in the four months preceding trial.  

“Unlike Monsanto, who presents real evidence showing a deliberate intention by plaintiffs’ law firms to precondition potential San Francisco Bay Area jurors with misinformation, Plaintiffs have come forward with no evidence justifying a prior restraint of Monsanto’s speech nationwide during the pendency of this trial," lawyers for Monsanto wrote.

“While Roundup litigation ads on local broadcast networks in the Bay Area peaked in August and September of 2018, advertising on local cable networks here increased significantly towards the end of 2018 and into the beginning of 2019,” their brief states. “About 1,888 television ads aired locally on cable television networks in the San Francisco Bay Area from January 1, 2018 through March 21, 2019.

The trial is the third of its kind with thousands more expected to follow. Last month plaintiff Edwin Hardeman was awarded $80.5 million in damages, following last year’s verdict in the case of Dewayne Johnson in which he was awarded $78 million.

Bayer has recently vowed to make their scientific studies available to the public, releasing a statement on Monday.

“Transparency is a catalyst for trust, so more transparency is a good thing for consumers, policymakers and businesses. As an innovation company, safety is our top priority and we are completely committed to doing everything we can to ensure that our products are safe for people and the environment," said Liam Condon, member of the Board of Management of Bayer AG and president of the Crop Science Division. "By making our detailed scientific safety data available, we encourage anyone interested to see for themselves how comprehensive our approach to safety is. We embrace the opportunity to engage in dialogue so we can build more trust in sound science.”

The case of Pilliod v. Monsanto continued in Oakland Monday after an off day Friday. It is expected to last into early May.

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