As is frequently the case, a regulatory development or finding will serve as the impetus for activity in the realm of toxic tort. From the plaintiff’s perspective, the underlying science has been given the patina of credibility by the regulatory action; from the defense view, the regulatory action does not elevate the underlying science to the requisite legal standard because the purpose and criteria for the regulatory action are different and less stringent. Nevertheless, spurred by the regulatory action, issue is joined and the debate ensues, sometimes on fronts in addition to a traditional toxic tort lawsuit.
Glyphosate, an active ingredient in herbicide formulations, provides a good example of this scenario. In March 2015, the International Agency for Cancer Research (IARC) classified glyphosate as “probably carcinogenic to humans.” Notably, this classification is contrary to the findings and status of glyphosate determined by the U.S. Environmental Protection Agency (EPA) and the European Chemicals Agency (ECHA), and IARC’s comparable standing as a “regulator” might be questioned, although it is commonly thought of as the world’s preeminent cancer “agency.”