Vaping Injuries top 1,000 as FDA updates warning

(Oct. 7, 2019) As vaping injuries now top 1,000, with 18 deaths reported, the FDA issued an updated warning last week. The agency has said that most of the 1,080 reported injuries have come from THC-containing vaping products, but some medical professionals estimate that 10-30 percent of the reported injuries have come from people who were not vaping THC. Tetrahydrocannabinol, one of at least 113 cannabinoids identified in cannabis, is believed to be the principal psychoactive ingredient, the one thought to give cannabis users a “high.”

Vaping Injury Symptoms, Diagnosis

Vaping injury symptoms typically include shortness of breath, pain upon deep breathing, and coughing. A Mayo Clinic doctor has said that the lungs of injured vapers look as if they’ve been exposed to mustard gas which poisoned soldiers in WWI. Other medical examiners say the lungs look as if they’ve been exposed to toxic fumes from an industrial accident.

Related: JUUL E-Cigarette Lawsuit

Most Vaping Injuries among Younger People

The average age of the 18 deceased vapers is 49.5 years, said Dr. Henry Niman on the Jeff Rense radio show which aired Oct. 5. The deaths are concentrated in older patients, said Dr. Niman, with the youngest of the 18 fatalities reported as 27, the oldest as 70. The ages of the injured vapers are concentrated at the lower end of the age spectrum. The injured range from teenagers to people in their late 60s, with 67 percent of the injured being 18-35 years old, and 84 percent being under age 35.

While the FDA has reported that deaths are mostly from illicit THC-vaping products, Dr. Niman says that at least two vapers killed in Oregon bought their e-cigarette products at a legal dispensary. (THC is legal in Oregon.) Dr. Niman has also said that vapers have been injured who did not use a THC-containing product.

Injury Increase caused by Intense Heating?

The doctor believes that the alarming uptick in vaping injuries has come as a result of a new JUUL patent issued in 2017. JUUL officials discussed adjusting the temperature of the propylene glycol which is typically what is done to maximize the effects of nicotine. JUUL said that it would be preferable to heat the e-cigarette to 180-190 degrees Celcius (374 degrees Fahrenheit), and to heat the vegetable glycerin or (VG) up to to 280-290 degrees C (554 degrees Fahrenheit).  The new JUUL poduct hit the market at the end of 2017. It quickly became increasingly popular as enormous JUUL marketing campaigns blanketed the country, expertly hooking kids and thousands of unwitting others on nicotine.

Though reported lung injury cases went back to Spring 2019, there was a big jump in cases during June and July this year.  Dr. Niman believes that increase in injuries has something to do with JUUL’s temperature-adjustment changes that began in 2017 with a newl-patented product. Perhaps that incredible heat alone could damage lungs, but there is also the question of unknown ingredients which JUUL will not reveal until it is forced to do so by the FDA or by legal discovery in JUUL e-cigarette lawsuits. Plaintiffs’ attorneys are already beginning to pursue litigation against the company, for causing lung injuries as well as for encouraging chemical addiction.

FDA Chief Warns against THC Vapes

Amid the growing vaping crisis, on Oct. 4 the acting commissioner of the U.S. FDA warned the public to avoid using THC-containing vaping products. Acting FDA Commissioner Norman E. Sharpless said in a statement that the FDA’s updated alert also warns consumers who choose to use vaping products to not modify or add substances such as THC or other oils to products purchased in stores. The agency also cautioned against purchasing any vaping products through illicit channels.

“At this time, the FDA does not have enough data to identify the cause, or causes, of the lung injuries in these cases,” Mr. Sharpless said in the press release. “While no one compound or ingredient has emerged as a singular culprit, we do know that THC is present in most of the samples being tested. Because of this, the agency believes it is prudent to stop using vaping products that contain THC or that have had any substances added to them, including those purchased from retail establishments.”

Mr. Sharpless said those who continue using vaping products should monitor for symptoms and promptly seek medical attention if they have health concerns. He also repeated a prior warning that no children or pregnant women should use any vaping product. Those who experience unexpected tobacco or vaping-related health or product issues should submit detailed reports to the FDA through its online safety reporting portal, he said.

Vaping Injuries top 1,000 as FDA updates warning

Dr. Anne Schuchat, principal deputy director of the CDC, said in an Oct. 3 telephone press conference that the 18 deaths confirmed and reported to the CDC have come from 15 states. More deaths  are under investigation. Dr. Schuchat said vaping injury cases have been reported from 48 states and the Virgin Islands. In addition, 275 cases have been identified since late September 2019, including new patients and updated diagnoses on existing patients.

She also repeated previous agency statements that the FDA has not identified any specific substance or product that is linked to all the cases.

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Juul stops advertising, fires CEO

(Sept. 26, 2019) Juul will stop advertising, and the company plans to fire its CEO, according to an Associated Press report yesterday. The announcement comes as leading government health officials say underage vaping has reached epidemic levels.

Juul Labs announced Sept. 25, 2019 that it will no longer promote its e-cigarettes in print, digital, or television advertisements.  Juul also said it will replace its CEO. The actions come in response to a growing, nationwide backlash against vaping. At least 10 young people are reported to have died from the “convenient” practice, and more than 500 have sought professional medical help for vaping-related injuries.  Vapers have reported strokes, damaged lungs, and other serious injuries, in addition to the life-crippling problems of nicotine addiction enabled by e-cigarettes.

Juul Lobbying won’t challenge Trump’s Proposed Ban

Juul – the country’s most profitable e-cigarette company – also said yesterday that it would not lobby against a sweeping ban on vaping flavors proposed by President Donald Trump’s administration earlier in September 2019.

New Juul CEO Ex-Marlboro Man

Juul announced that CEO Kevin Burns will be replaced by a senior executive from Marlboro cigarette-maker Atria, which paid $13 billion in December 2018 for a 35% stake in Juul. Altria Group Inc. said K.C. Crosthwaite, who served as Altria’s “chief growth officer,” will become JUUL’s new CEO.

The changes come amid growing public concern over vaping. An angry backlash has triggered calls for tighter federal- and state-restrictions on the nicotine-sucking habit. Earlier this week, the state of Massachusetts proposed banning all vaping products for four months.

Juul and hundreds of smaller e-cigarette companies are now under fire nationwide. The companies, with their slick advertising campaigns targeting underage people – much like the sly Joe Camel campaign did a while ago – are being blamed for two public health problems linked to vaping.  One is a mysterious lung illness that has afflicted hundreds of people so far. The second is an alarming increase in teenagers’ becoming nicotine junkies through the too-convenient use of e-cigarettes.

Hundreds of Vaping Injuries as ¼ of H.S. Students Vape

Public health officials are investigating hundreds of cases of the mysterious breathing ailment linked with vaping. They have not yet identified any one product or ingredient as causing the problem.  Meanwhile, underage vaping has reached epidemic levels, according to government health officials. Recent research shows that more than 1 in 4 high school students used e-cigarettes in the last month.

Cigarette Company Merger Aborts, Wal-mart blinks

Most likely as a result of the volatility of the current vaping situation, tobacco giants Altria and Philip Morris International said they were calling off discussions of a merger. The merger abortion comes exactly one month after the two had announced their plans to merge.

In other bad news for e-cigarette makers, Walmart has just announced that it plans to cease its e-cigarette sales.

Juul Rules E-Cigarette Market

Juul moved to the top of the multi-billion-dollar e-cigarette market by combining slick marketing campaigns with high-nicotine pods and sweet dessert and fruity flavors. The San Francisco-based company now controls 70% of the U.S. e-cigarette market.

Juul has tried to curtail a crackdown on its products since 2018 by taking several voluntary steps. Juul ceased selling several flavors in retail stores and shut down its social media presence. But the company failed to correct its flagging public image fast enough.  Parents, politicians, and public health advocates have continued to push for a broader crackdown against e-cigarette makers.

Juul now faces several investigations from Congress, from several federal agencies, and from state attorneys general.

Juul Lawsuit Filings

Juul also faces a growing list of lawsuits from young people injured by the company’s e-cigarettes. Plaintiffs ‘s lawyers have noted the problem and are vowing to take action to take the company to task. Lawsuits focus on Juul’s failure to warn users of the dangers of nicotine addiction, and failure to warn to warn users of the health dangers that e-cigarettes pose.

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FDA warns JUUL Labs for misleading e-Cigarette Marketing

(Sept. 11, 2019) The FDA warned JUUL Labs this week for misleading young people with aggressive e-Cigarette marketing campaigns. The FDA warning – announced Sept. 9, 2019 – included the agency’s objections to JUUL’s claims that its products lower or modify the risk of nicotine-loaded tobacco products. The agency also voiced its objections to JUUL’s youth-outreach programs, under the banner of which JUUL promoted e-cigarettes to adolescents herded into JUUL-run classrooms at the behest of the company. The dubious claims JUUL made to captured underage audiences in the schools were never approved by the FDA. Hence the warning.

The FDA requested with the warning that JUUL provide the agency with more information regarding several issues that include the company’s outreach and marketing practices.

FDA Warning to JUUL

“Today, the U.S. Food and Drug Administration issued a warning letter to JUUL Labs Inc. for marketing unauthorized modified risk tobacco products by engaging in labeling, advertising, and/or other activities directed to consumers, including a presentation given to youth at a school. The agency also sent a letter to the company expressing concern, and requesting more information, about several issues raised in a recent Congressional hearing regarding JUUL’s outreach and marketing practices, including those targeted at students, tribes, health insurers and employers. These letters are the latest (development) in the FDA’s ongoing investigation related to JUUL.”

Acting FDA Commissioner Ned Sharpless, M.D., added:

“[B]efore marketing tobacco products for reduced risk, companies must demonstrate with scientific evidence that their specific product does in fact pose less risk or is less harmful. JUUL has ignored the law, and very concerningly, has made some of these statements in school to our nation’s youth. In addition, we’re troubled about several issues related to JUUL’s outreach and marketing practices that came to light in a recent Congressional hearing.”

Dr. Sharpless said the agency will continue to “scrutinize tobacco product marketing” and act to ensure the public is not misled into believing a certain product has been proven less risky or less harmful when it has not been proven so. “We’ve also put the industry on notice,” he said.  “If the disturbing rise in youth e-cigarette use continues, especially through the use of flavors that appeal to kids, we’ll take even more aggressive action.”

Modified Risk Tobacco Products?

The main issue is that JUUL has marketed its e-cigarettes as “modified risk tobacco products” without an appropriate FDA order in effect to represent them as such. The violation occurred because JUUL marketed a product to lead consumers to believe several things which are unproven.  JUUL illegally claimed in its marketing that its e-cigarettes:

1) present a lower risk of tobacco-related disease or are less harmful than one or more other commercially marketed tobacco products;

2) contain a reduced level of a substance or present a reduced exposure to a substance; and/or

3) do not contain or are free of a substance or substances.

The FDA warning letter identifies several statements (discussed) in testimony from a July 2019 Congressional hearing. According to that testimony, a JUUL representative speaking with students at a school presentation erroneously claimed:

  • JUUL “was much safer than cigarettes” and that “FDA would approve it any day.”
  • JUUL was “totally safe.”
  • A student “…should mention JUUL to his [nicotine-addicted] friend…because that’s a safer alternative than smoking cigarettes, and it would be better for the kid to use.”
  • “FDA was about to come out and say it [JUUL] was 99% safer than cigarettes…and that…would happen very soon….”

Parent’s Complaint to JUUL Heard

The FDA warning to JUUL also included a letter from JUUL’s CEO that appeared on the company’s website and also in an email JUUL sent to a parent who complained that JUUL sold its products to her child. The CEO’s letter states: “[JUUL’s] simple and convenient system incorporates temperature regulation to heat nicotine liquid and deliver smokers the satisfaction that they want without the combustion and the harm associated with it.”

450 e-Cigarette Injuries, Six (6) Deaths

E-cigarettes have come under fire this summer (no pun intended) as hundreds of otherwise healthy, mostly young people who used the devices have struggled to breathe and were hospitalized. A respiratory illness from the products has mystified public health officials who continue to investigate by testing products and patient specimens. As of late last week, 450 cases were reported across the country, according to the CDC. Six of those patients have died. All that’s known about the victims is the state where they lived and their age – all were at least 18.

FDA warns JUUL Labs for misleading e-Cigarette Marketing

One JUUL pod delivers as much nicotine as 30 to 40 cigarettes. Users quickly find themselves physically addicted and suffering from a range of side effects that include seizures, lung and respiratory problems, strokes, heart disease and other potentially long-term health-related complications. We still don’t know the scope of lasting damage caused by high-dosage delivery of nicotine on still-developing brains. We don know that attorneys are beginning to file JUUL E-Cigarette Lawsuits against the company.

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Juul must face e-cigarette lawsuit filing

(August 26, 2019) – Juul must face an e-cigarette lawsuit filing, a California federal judge ruled on August 23. The company can trim some claims in a proposed class action lawsuit that alleges Juul deceptively advertised the nicotine content in its e-cigarette products. The company cannot, however, escape all the litigation, the judge ruled. Juul also cannot keep the legal claims out of the public eye, behind closed doors in arbitration.

U.S. District Judge William H. Orrick ruled that a group of 13 e-cigarette users in seven states, including three minors, can move forward with the majority of their claims that Juul Labs Inc. deceptively advertised the amount of nicotine in its e-cigarette product.

Two Claims Dismissed

The judge did dismiss two claims without leave for complaint amendment. The plaintiffs’ negligence per se claim was tossed, based on a lack of Juul’s failure to obtain licenses to sell its products in certain states. He ruled the class failed to identify a standard of care contained in any of the state licensing statutes which they cited in the lawsuit petition.

The judge also tossed the plaintiffs’ breach of express warranty claim, finding that Juul’s one-year warranty covers only defects in materials and workmanship related to the e-cigarette device. He ruled the warranty doesn’t cover the pod that contains nicotine.

High Nicotine Content not divulged

The class claims in its lawsuit that Juul’s e-cigarettes contain 20% more nicotine than the product labeling claims. This false advertising and labeling, they say, influenced them to buy and use the products in the hopes of quitting smoking. In reality, the products actually gave them more nicotine than if they had continued smoking traditional cigarettes.

Judge Orrick rejected Juul’s argument that the plaintiffs have attempted to reallege preempted labeling claims in breach of his prior order in October, which dismissed some of the class’ previous warning label claims.

Claims Based on Advertisements are alive

The judge denied Juul’s motion to strike allegations related to its point-of-sale displays. He found the plaintiffs’ consumer protection claims were not based on labeling, but on advertisements. He said his prior order held that claims based on advertisements were not preempted.

Judge Orrick cited the case of Fontem US Inc. when he wrote his opinion:  “Other courts have considered arguments similar to Juul’s concerning POS displays and concluded that POS displays do not constitute labeling because they are ‘not attached to the immediate container of a product and will not accompany the product during the period of use.’”

The judge also denied Juul’s motion as to the plaintiff’s claim of misrepresentation about the amount of nicotine in the e-cigarettes. He rejected Juul’s argument that the class hadn’t plausibly alleged their claim. Juul argued that because nicotine risks are well known, Juul has no duty to warn beyond U.S. FDA labeling requirements and California’s Prop 65 requirement.

The judge, however, found the plaintiffs sufficiently alleged a claim regarding Juul’s claim that one pod contains as much nicotine as a pack of cigarettes.

Twice the Nicotine of a Cigarette Pack

The judge wrote: “Although the dangers of nicotine are known to the community, it would go too far to say that Juul need not warn consumers that using Juul’s product will cause their bodies to absorb twice as much nicotine as they would from a pack of cigarettes.”

False Advertising, Fraud, Unjust Enrichment, other Claims. . .

The judge also allowed the plaintiffs to move forward with their false advertising, fraud, unjust enrichment, design defect, manufacturing defect, negligent marketing, breach of implied warranty, and deceptive trade practices’ claims.

No Binding Arbitration

Judge Orrick also denied Juul’s motion to compel arbitration against five of the plaintiffs. He found that because the plaintiffs did not have actual notice of an arbitration provision included in the terms and conditions of Juul’s website when they created or logged into their accounts, they are not bound by the provision.

HiddenTerms & Conditions

The plaintiffs pointed out that the hyperlink to read Juul’s terms and conditions is inconspicuous and wasn’t a different color, underlined, italicized, or made visually distinct in any other way from the surrounding text.

Judge Orrick agreed, calling the hyperlink “wholly indistinguishable” from the text. He wrote: “Users cannot be reasonably expected to click on every word of the sentence in case one of them is actually a link.”

Juul also faces a proposed class action in Florida federal court which claims the company tailors its advertising to appeal to minors and hides the high amounts of nicotine that users get from Juul products. Juul is also one of several e-cigarette makers to receive an ultimatum from the FDA to propose solutions to the epidemic of youth e-cigarette use within 60 days.

Juul Response

Juul told Law360 it was pleased Judge Orrick partially granted its motion. Juul said it isn’t allowed to present any evidence at this stage and that the court is obligated to treat the plaintiffs’ allegations as true. Juul also said it “respectfully disagrees” with the judge’s ruling on its motion to compel arbitration and said it is considering whether to appeal that issue.

Juul must face e-cigarette lawsuit filing

The case is Colgate et al. v. Juul Labs Inc., case number 3:18-cv-02499, in the U.S. District Court for the Northern District of California.

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EPA refutes Science, refuses to ban Harmful Pesticide

(July 23, 2019) It is now official: The U.S. Environmental Protection Agency is an industry-captured entity. It does not “work” for the people of this country for whom it was created, by President Richard Nixon in 1970. (Say what you will about Mr. Nixon; in creating the EPA, he was on the right side of history.) The proof is in the pudding; and it is, by any estimation, a very nasty toxic pudding that we are eating today. The EPA’s final ruling last week refutes established science as the agency refuses to ban a harmful pesticide, chlorpyrifos. The move proves once for all that this agency works for corporate profits at the expense of us all.

Related: Chlorpyrifos Pesticide linked to Autism, ADHD, Lower IQ

Chlorpyrifos Poison Green-lighted by EPA
Despite the EPA’s own scientists reporting for years that chlorpyrifos has not been proven safe at any exposure level, that even the tiniest increments of this poison (developed from nerve gas meant to kill people) can cause childhood development injuries, including autism, ADHD, lowered IQ and behavioral problems, that chlorpyrifos in any dose is dangerous for babies in the womb and for young children, the agency last week voted to allow this poison to remain on the market.

The kicker, the dark punch line in this travesty, is that the EPA’s own scientists have repeatedly determined that chlorpyrifos pesticide – which is sprayed to some degree on nearly every food not organically grown, and wafted hither and yon into the lungs of us all – harms the developing brains of children and also harms us all in various ways. Pesticide-related death or disease – like the non-Hodgkin’s lymphoma suffered by more than 12,000 people now suing Monsanto for sickening them with its cancer cocktail Roundup – is the new normal, slow pesticide death by a thousand cuts. Pesticides like chlorpyrifos add to the body’s already toxic burden. They either shorten one’s life or they lower the quality of life for most of us who eat the food and drink the water the pesticide has poisoned.

Chlorpyfiros is Everywhere
Make no mistake, chlorpyrifos is everywhere. Farmers use it on a wide variety of crops, including corn, soybeans, fruits, nut trees, Brussels sprouts, cranberries, broccoli, cauliflower. This poison is used on most fruits and vegetables eaten in the U.S.. And even if you are eating only organic food (and who can do that?), you are still paying the freight for rising health care costs that affect most of the people made sick by avoidable poisons like Roundup and chlorpyrifos. And your tax dollars will continue to pay more for the special education needs of those children stunted by the EPA’s green-lighted poison.

Health is Wealth
Most people in our country imagine themselves healthy if they don’t have a grapefruit-sized tumor growing out of their neck. Most can’t connect the dots running from our broken “healthcare” system to our poisoned food and water and the tax monies we all pay. Most are so polluted with various toxins, most carry such a heavy toxic burden in their overloaded bodies that they can’t even imagine what it’s like to be clear-eyed and healthy in mind, spirit, and body. This enormous blindness where real health as wealth is concerned is one of the great ongoing tragedies of our time. And now the U.S. EPA has just moved to affirm our degraded toxic state of spiritual, mental, and physical degradation as the new normal.

How long has the EPA known of Chlorpyrifos Dangers?
EPA scientists have known of chlorpyrifos’ dangers for more than 20 years. The EPA banned chrlorpyrifos for most home uses back in the year 2000, citing risks to children.

So what has changed to make the agency “feel” the chemical is safer for kids now than it was in 2000? As John Lennon said, money doesn’t talk, it screams. The new EPA is all ears when it comes to money. This is Donald Trump’s EPA, and the man with the gold-plated toilet has always been most helpful to those who can show him the money.

Mr. Trump’s first EPA head, Scott Pruitt, resigned in disgrace amid a series of ethics scandals after he was caught using our tax dollars for private plane trips, double secret probation phone booths, and other extravagant amenities that only government-connected crooks or obscenely wealthy career politicians can afford to waste our tax money on.

EPA rejects own Scientists Findings
On the heels of Mr. Pruitt’s disgrace comes this latest EPA move backwards in one of the most troubling environmental deregulation moves of Mr. Trump’s presidency. Under pressure from a court-ordered deadline, the EPA last week reaffirmed its unconscionable 2017 decision to reject a proposal from the EPA’s own scientists to ban chlorpyrifos.

Tom Philpott reported for Mother Jones in 2017:
“[C]hlorpyrifos is a nasty piece of work. It’s an organophosphate, a class of bug killers that work by ‘interrupting the electrochemical processes that nerves use to communicate with muscles and other nerves,’ as the Pesticide Encyclopedia puts it. Chlorpyrifos is also an endocrine disrupter, meaning it can cause ‘adverse developmental, reproductive, neurological, and immune effects,’ according to the National Institutes of Health.

Major studies from the Mount Sinai School of Medicine, the University of California-Davis, and Columbia University have found strong evidence that low doses of chlorpyrifos inhibit kids’ brain development. Exposure is especially insidious in the womb, with effects ranging from lower IQ to higher rates of autism. See the NIH – Pub Med Article.

Cozy Regulator Regulated Relationships
Mr. Philpott also elucidates the cozy relationship between President Donald Trump and Dow Chemical, which markets chlorpyrifos:

“Dow AgroSciences’ parent company, Dow Chemical, (has) contributed $1 million to the president’s inaugural committee, the Center for Public Integrity notes. In December 2018, Dow Chemical Chairman and CEO Andrew Liveris attended a post-election Trump rally in the company’s home state of Michigan. (Dow) used the occasion to announce plans to create 100 new jobs and bring back another 100 more from foreign subsidiaries. Around the same time, Trump named Liveris chair of the American Manufacturing Council, declaring the chemical executive would “find ways to bring industry back to America.” (Dow has another reason beside chlorpyrifos’ fate to get chummy with Trump: its pending mega-merger with erstwhile rival DuPont, which still has to clear Trump’s Department of Justice.)

Since the 2017 chlorpyrifos decision, the administration has approved the Dow-Dupont merger and named several former Dow executives to high posts within the US Dept. of Agriculture.

Meanwhile, Hawaii, California, and New York have all announced plans to phase out chlorpyrifos use in farm fields.

A Poisoned Future
It all adds up to a poisoned future for America’s children, not to mention the rest of us not wealthy enough, cash-wise, to purchase the political favors of a U.S. president.

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Judge calls Monsanto “reprehensible,” refuses to toss Jury Verdict

 (July 16, 2019) Calling Monsanto “reprehensible” for concealing the cancerous hazards of Roundup, U.S. District Judge Vince Chhabria refused to toss out a jury verdict against the chemical giant this week.

Judge Chhabria oversaw the Roundup trial in which a jury, in March 2019, ordered Monsanto to pay Ed Hardeman $80 million.

Monsanto more concerned with silencing safety concerns than ensuring Roundup Safe

The judge said a punitive award is appropriate because trial evidence “easily supported a conclusion that Monsanto was more concerned with tamping down safety inquiries and manipulating public opinion than it was with ensuring its product is safe.”

Mr. Hardeman alleged in his 2016 lawsuit petition that he developed non-Hodgkin’s lymphoma after spraying Roundup for 26 years around his 56-acre property. His northern California land included hiking trails dotted with poison oak, which Mr. Hardeman said he dosed heavily with Roundup. Then he woke one morning with a golf-ball sized lump on his neck, and was soon diagnosed with non-Hodgkin lymphoma, around Christmas 2014.  Monsanto’s lawyers say he has been in remission for four years after taking chemo “therapy.”

In reviewing the case at Monsanto’s request, the judge did agree this week to reduce the $80 million verdict to $25 million. He said he found the punitive damages award “unreasonably high.” At the same time, Judge Chhabria said he agreed with the plaintiff’s side that the roughly $5 million in compensatory damages awarded to Ed Hardeman was sufficiently supported by the trial evidence. However, the judge called the jury’s $75 million punitive damages award against the Bayer AG unit “constitutionally impermissible.”

Judge: Monsanto’s Conduct Reprehensible

“The jury’s punitive damages award was approximately 15 times the size of the compensatory damages award,” said the judge. “Monsanto’s conduct, while reprehensible, does not warrant a ratio of that magnitude, particularly in the absence of evidence showing intentional concealment of a known or obvious safety risk.”

Judge Chhabria found that the $75 million in punitive damages exceeded the constitutional limit set by the due process clause which prohibits “grossly excessive” punitive damages. He reduced the punitive damages award to $20 million, which changed the total amount to around $25.3 million.

The California jury unanimously found Monsanto liable for failing to warn that glyphosate, Roundup’s only listed active ingredient, could cause cancer. The jury awarded Mr. Hardeman more than $80 million, shocking the chemical giant in the first federal bellwether trial.

Jury Unanimous over Failure to Warn, Negligence, Design Defect
After deliberating for a day, five women and one man found Monsanto liable on a failure-to-warn claim, a negligence claim, and a design defect claim. The six awarded Mr. Hardeman $200,967 in economic damages, roughly $5 million in future and past noneconomic damages, $75 million in punitive damages.

Bayer spokesperson Christopher Loder called Judge Chhabria’s decision to slash the punitive damages award a “step in the right direction.” Mr. Loder also repeated again Monsanto’s oft-repeated claim that the damage awards are not supported by “reliable evidence and conflict with both the weight of the extensive science that supports the safety of Roundup, and the conclusions of leading health regulators in the U.S. and around the world that glyphosate is not carcinogenic.” He also said that Bayer plans to file an appeal with the Ninth Circuit.

Judge rejects Monsanto Bid to Toss Jury Verdict

On July 12, Judge Chhabria denied Monsanto’s bid for a new trial. He said there was no reason to overturn the jury’s verdict on Mr. Hardeman’s design defect claim because sufficient evidence supported a finding that Roundup is defective under California law when sold without a warning.

The judge also rejected Monsanto’s argument that the jury saw an “inaccurate view” of the scientific and regulatory landscape around Roundup.

Judge: Monsanto limited Evidence, made its own bed
“This argument is fundamentally about the scope of the trial,” the judge said. “While Monsanto is correct that the jury wasn’t presented with the entire regulatory landscape, that is primarily a function of the evidentiary parameters Monsanto itself requested, and was largely granted, in response to motions in limine.”

Monsanto is also fighting two other huge trial losses over Roundup. Prior to Mr. Hardeman’s March 2019 verdict, an August 2018 trial resulted in a $289 million judgment against Monsanto for school groundskeeper DeWayne Johnson, a verdict later slashed to $78 million. In the third Roundup trial, in May 2019, a jury awarded a husband and wife a $2.055 billion verdict. Alva and Alberta Pilliods’ case is one of approximately 13,400 pending. Most are consolidated in multidistrict litigation (MDL Court) before Judge Chhabria.

Judge calls Monsanto “reprehensible,” refuses to toss Jury Verdict

The case is Hardeman v. Monsanto Co. et al., case number 3:16-cv-00525, and the MDL is In re: Roundup Products Liability Litigation, case number 3:16-md-02741, in the U.S. District Court for the Northern District of California.

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Monsanto Money Buys Science

(July 12, 2019) Monsanto money buys science. The embodiment of the way Monsanto works to buy whatever scientific “expert” opinions it needs is readily seen in the person of one Dr. Nina V. Federoff. This woman has been outed as a shameless industry shill by Stacy Malkan of U.S. Right to Know. Ms. Malkan’s exposé titled, “Nina Fedoroff: Mobilizing the authority of American science to back Monsanto” is an impressive piece of journalism in an age when good journalism grows increasingly rare. Most journalism simply does not pay well unless one writes for Monsanto or some other corporation that can afford to pay a  promoter like Henry I. Miller or shameless others of his ilk.

Ms. Malkan follows the money to show just how Dr. Federoff has, for years, served her Monsanto and GMO benefactors. The doctor does so by never divulging the fact that she has been rewarded in one form or another by Monsanto and other corporations of its ilk that promote the genetically modified (Read: genetically perverted) food industry.  For more on the subject, please see “Genetic Roulette: The Gamble of Our Lives, based on a book of the same name by Jeffrey M. Smith.

Ms. Malkan demonstrates how Dr. Federoff has promoted chemical industry giants like Monsanto, as well as all things GMO, while posing as a disinterested third-party “expert.” Federoff has done her work for Monsanto – like the execrable Michael Taylor before her – not only by moving through the revolving door that runs between government “service” and industry employment, but also by posing as someone with a talent for the truth when it comes to Monsanto and genetically perverted food.

Dr. Federoff is a perfect example of all that is rancid and wrong in Washington D.C. She does her dirty work in the dark for an industry that makes its money by killing things, and she does it while pretending to work in the light as a disinterested third party. A principal factor in her duplicity is her failure to disclose her industry ties, her vested interest in promoting Monsanto and GMOs. She routinely pretends to operate independently of her corporate benefactors. She virtually never reveals who is paying her to promote (or defend) Monsanto and GMOs, but her ruse begins to unravel when every position she ever held has been nothing but a promotion for the chemical and GMO industries that poison the world with toxic pesticides like Roundup.

Using the AAAS to advance agrichemical industry policy objectives

As Ms. Malkan reports, during her 2011-2012 run as president of the American Association for the Advancement of Science (AAAS) and as Chair of the Board of Directors from 2012-2013, Dr. Fedoroff worked with agrichemical industry allies to advance key policy objectives. She worked to keep genetically engineered foods unlabeled. She worked to defeat a proposal by the U.S. EPA that would have required additional data on the health and environmental impacts of genetically engineered crops which are classified as pesticides. She wants us eating pesticides without our knowing it, wants us blindly eating without question or knowledge whatever her corporate benefactors choose to “produce.”

AAAS helped persuade voters to oppose GMO labeling

In 2012, the AAAS Board of Directors under Dr. Fedoroff’s chairmanship, moved to convince California voters to vote against GMO-food labeling. California’s Proposition 37 was a ballot initiative to label GMOs. A review of the many political statements made by AAAS found no other examples of the organization trying to influence voters ahead of a state election. The AAAS and Dr. Fedoroff refused to respond to USRTK requests for comment. USRTK works to promote labeling,which 90 percent of U.S. citizens polled have said they prefer.

The AAAS board’s statement opposing GMO labeling contained inaccuracies, according to longtime AAAS members. Several of them denounced the anti-labeling statement as a “paternalistic” attack on consumer rights that misled the public by omitting important scientific and regulatory context.

AAAS goes to Bat for Industry

Curious similarities appeared in language used by the AAAS and the industry-funded campaign to defeat Proposition 37. “Is a major science group stumping for Monsanto?” Michele Simon asked in Grist. Ms. Simon, noted Ms. Malkan, described the board’s statement as “non-scientific but very quote-worthy,” and noted that the accompanying AAAS press release contained “talking points” that matched No on 37 campaign literature.

AAAS Lack of Transparency

In a 2013 letter to Science magazine, another group of 11 scientists raised concerns that the AAAS board’s statement on GMO foods “could backfire.” They wrote, “we are concerned that AAA’s position represents a poorly informed approach to communicating science …  appearing to be less than transparent is a really bad idea for the scientific community.”

Dr. Fedoroff was an early supporter of the industry-backed “‘No’ on 37” campaign. She was listed on an industry website in June 2012 as one of four scientists representing the “scientific and academic community” who opposed GMO labeling. The industry campaign later asked Dr. Fedoroff to help recruit more academics to their cause, which she did, according to an October 1, 2012 email to Meghan Callahan of BCF Public Affairs.

Helped kill data requirements for pesticide-producing plants

While serving as AAAS president in 2011, Dr. Fedoroff worked with agrichemical industry allies and an industry lobbyist to stop the U.S. EPA from requiring companies to provide additional health and safety data for genetically engineered foods that are classified as pesticides. The USRTK web site presents detailed emails showing just how low Dr. Fedoroff was willing to go to please her corporate masters.

Please see Ms. Malkan’s entire US Right to Know story to see just how Dr. Fedoroff operates at the behest of Monsanto and others.  Her being outed by USRTK is one more nail in Monsanto’s coffin as it tries to continue fooling the public regarding its carcinogenic Roundup and its promotion of toxic GMO “food.”

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Chlorpyrifos Pesticide linked to Autism, ADHD, Lower IQ

Several studies have linked pesticides to child development problems. Those near farms face the greatest risk.

(June 17, 2019) Young children exposed to pesticides containing chlorpyrifos can suffer lifelong problems that include autism, ADHD, Parkinson’s-like tremors, and lower IQ. Many injured by chlorpyrifos were exposed to the chemical while in the womb of their pregnant mothers. Prenatal exposure to chlorpyrifos has been linked to anomalies in the brain’s surface.

What is Chlorpyrifos?

Chlorpyrifos — patented by Dow Chemical in the 1960s — belongs to a nasty family of toxic pesticides called organophosphates. These pesticides work as neurotoxins to kill insects. In bigger doses, they’re also neurotoxic to human beings.

People once used chlorpyrifos to control insects at home, though the EPA has banned residential use.

Besides homes, chlorpyrifos was widely used as a multipurpose insecticide for many agricultural and residential applications – from flea control for pets to mite protection for crops.  Trade names include Lorsban, Lock-On, Cobalt. Chlorpyrifos was also marketed and sold for home and industrial uses under the brand name Dursban.

Farm workers and others who often handle or inhale chlorpyrifos and other organophosphates are at the “highest risk of exposure,” the NIH says. When it’s sprayed in homes and gardens, residents are also at a “higher risk of exposure,” says the NIH.

The EPA banned chlorpyrifos for residential uses in 2000, except where it might be “safely” contained in ant and roach bait products.

How does Chlorpyrifos work?

Chlorpyrifos lethally disrupts the nervous system of its targets. Dow developed it to rid homes and gardens of cockroaches, ants, mites, and other undesirables. The problem is that human beings can also be vulnerable to the neurotoxic effects in small, continuous doses.

Chlorpyrifos Pesticide linked to Autism, ADHD, Lower IQ

Chlorpyrifos exposure occurs in many ways. Families living near farms that spray chlorpyrifos on their fields are acutely affected. Runoff from agricultural uses can put the chemical in drinking water. If you think you are safe from chlorpyrifos, don’t buy any fruits and vegetables; its residue can remain on fruits and vegetables in your local grocery store.

Over the past several years, many studies have shown prolonged exposure to chlorpyrifos hurts neurodevelopment in fetuses and young children. It leads to a heightened risk for autism and ADHD. A recent EPA report detailed the risks of exposing infants and pregnant women to chlorpyrifos. It demonstrated a potential link to intelligence deficits; the development of autism; problems with attention, memory, and motor skills.

Dow disputes Scientific Findings

Dow disputes virtually any and all findings which point to chlorpyrifos dangers. A company website claims: “The weight of the evidence of years – in some cases, decades – of scientific study continues to demonstrate that there is no link between chlorpyrifos and any of these health concerns.” Dow, like another poison giant – Monsanto — has been funding its own scientific research to fight the growing consensus about chlorpyrifos.

Dow is preparing for a long legal battle to keep chlorpyrifos on the market, and, by turn, in our air, food, and water.

California Chlorpyrifos

It’s no surprise that the country’s largest food producer sees more chlorpyrifos dumped on it than any other state.  RevealNews.org reports that chlorpyrifos is used most heavily in the California counties of Fresno, Tulare and Kern.

A recent University of California, Davis study found that pregnant women living near fields treated with the pesticide chlorpyrifos were three times (3x) more likely to have a child with autism. Early childhood exposure has been linked to developmental delays.

California counties with highest chlorpyrifos use, including agricultural and nonagricultural uses such as landscaping, mosquito control and, before 2001, residential fumigation:

County Pounds of chlorpyrifos used, 1991-2012 Percentage change, 1991-2012
     
Fresno 7.2 million 78%
Tulare 6.1 million -21%
Kern 5.4 million 70%
Kings 3.2 million 97%
Stanislaus 2 million -66%
Imperial 1.8 million -50%
San Joaquin 1.7 million -59%
Merced 1.5 million -51%
Monterey 1.4 million -68%
Los Angeles 1.4 million -99%

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Jury awards $12M In Talc Suit against J&J, Colgate

(June 13, 2019)A California jury ruled yesterday that asbestos in Johnson & Johnson and Colgate Palmolive’s talcum powder products likely caused a woman’s cancer. The jury awarded the dying woman $12 million. It was the latest of several cases J&J has lost over its Baby Powder and Shower-to-Shower talc products. Thousands of similar lawsuits remain pending across the country instate and federal courts.

The 12-member state court jury deliberated for five days before concluding it is more likely than not that J&J’s baby powder and Shower to Shower, along with Colgate’s Cashmere Bouquet, contained asbestos that caused Ms. Patricia Schmitz’s mesothelioma.

Negligence, Design Defect, Failure to Warn, Concealment
The jury found both companies liable for negligence, design defect, failure to warn, and concealment.  The jury did not determine whether J&J and Colgate acted with “malice, oppression or fraud.”  Such a finding could have warranted punitive damages. The jury were also unable to find J&J liable for another intentional misrepresentation claim for advertising company talc products as “pure,” in spite of knowing they could be contaminated with asbestos.

The $12M  jury award included approximately $2 million in economic damages and $10 million in noneconomic damages. The jury found J&J 30 percent responsible, its subsidiary Johnson & Johnson Consumer Inc. 10 percent responsible.  The jury found Colgate 40 percent responsible. They also found non-party Avon Products Inc. 20 percent responsible.

The highly contentious trial began back on April 23 in Oakland, California. Ms. Schmitz claimed  decades of exposure to J&J and Colgate talcum products was a substantial factor in causing her cancer. The 61-year-old was diagnosed with mesothelioma in 2018. Her attorneys told the jury that she is not expected to live past this summer (2019).

J&J Execs knew Talc contained Asbestos

The jury heard wildly-conflicting expert testimony from mineralogists, pathologists, epidemiologists, microbiologists, and microscopists. Ms. Schmitz’s experts and attorneys pointed to dozens of internal corporate documents since the 1960s which they claimed show Colgate and J&J executives knew their companies’ talc products could contain asbestos.

Ms. Schmitz’s attorneys argued that the companies’ corporate executives downplayed the risks, skewed lab results, promoted imprecise talc testing methods, refused to replace talc with non-toxic cornstarch, failed to warn consumers and federal regulators.

Both sides complained to Judge Frank Roesch throughout the proceedings that their opponent had mentioned topics which he had specifically excluded from trial. On two occasions, J&J attorneys asked the judge to declare a mistrial.  He rejected both mistrial bids, called the second request “ridiculous.”

Sanctions for J&J Attorney?

Judge Roesch said during closings that he would entertain a request for sanctions against J&J’s counsel Alexander Calfo.  The plaintiff’s attorneys argued that J&J’s attorney, Mr. Calfo, repeatedly violated the judge’s pretrial orders during J&J’s closing arguments. They also argued that he  attacked the court. A June 25 date is set to hear that motion.

Growing List of Verdicts against J&J for Talc Products

This latest verdict adds to a growing list of plaintiffs’ wins in jury trials over claims that J&J’s talc products were contaminated with asbestos and caused their users’ cancers.

Earlier in 2019, another California jury awarded a woman and her family nearly $29.5 million over similar claims against J&J and talc supplier Cyprus Mines. In 2018, a New Jersey jury awarded Stephen Lanzo III and his wife $117 million. State judges in both cases have since refused to throw out or reduce the verdicts.

In May 2019, a New York jury hit J&J and its talc supplier with a $325 million verdict that included $300 million in punitive damages. That jury found the company’s talc powder likely caused Donna Olson’s pleural mesothelioma.  In a similar case in South Carolina, however, a jury cleared J&J of similar allegations.

J&J currently faces a federal probe and federal multidistrict litigation in New Jersey over claims that some of its talc products caused cancer. It also faces at least four securities suits over the allegations of asbestos contamination, according to its February 2019 U.S. Securities and Exchange Commission filing.

J&J was also hit with whopping $4.69 billion verdict in another talc cancer case, and Colgate was hit with a $13 million verdict in 2015.

Imery’s Bankruptcy Bailout
Imerys Talc America Inc., a J&J supplier, was originally named as a defendant in Ms. Schmitz’ complaint, but avoided trial after filing for Chapter 11 bankruptcy protection in February 2019. Imerys said it faces up to $100 million in debt from a litany of lawsuits over claims that talc which it produced contained asbestos.

Jury awards $12M In Talc Suit against J&J, Colgate

The case is Schmitz v. Johnson & Johnson et al., case number RG18923615, in the Superior Court of the State of California, County of Alameda.

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Roundup Cocktail threatens Monsanto

The Roundup cocktail that has killed living things for decades now threatens its Monsanto creator.  One is reminded of Macbeth’s pausing to consider the fallout before he murders Duncan: “That we but teach bloody instructions which, being taught, return to plague the inventor.”  Monsanto has taught a lot of bloody instructions through the years, all over the world. And now the company that kills for a living may fast be approaching its day of reckoning, despite whatever its well-paid lawyers and executives endlessly repeat about jury appeals as the company loses each new trial in spectacular fashion.

Or consider a Frankenstein metaphor – Monsanto as mad scientist creating an ugly monster that destroys its creator. All metaphors break down on close inspection, but this one might not be hyperbole, given the enormous verdicts against Monsanto that Roundup has wrought so far.  What seemed unthinkable just six months or a year ago is now eminently thinkable: The toxic Roundup cocktail may yet destroy its creator. The Wall Street Journal reported this week that Bayer is worth less now than the $63 billion it paid for Monsanto about a year ago.

The WSJ wrote on Monday, May 20, 2019:

“Bayer’s market capitalization has shrunk by more than 40% to roughly $59.13 billion. Worried that liabilities from the weedkiller are going to rise, investors have abandoned the stock, sending the shares into a downward spiral.”

Monsanto loses a third Roundup Trial, now 0-3 against Roundup Users

The latest Roundup trial – which brought a staggering $2 Billion verdict against Monsanto – has revealed to the world the glaring EPA loophole which allowed Monsanto to unleash Roundup on the world. It is a loophole that was clearly designed by chemical industry executives working through  back doors with “our” government regulators.  It was clearly not designed by regulators working first and foremost with the health of the public, the birds, bees, animals, and the land in mind. This glaring loophole has helped corporations escape liability in most environmental or product liability cases for many decades.

The Glyphosate Loophole

The regulatory loophole is so large and glaring that it is difficult to imagine it being allowed by any sane agency, government, or people. This loophole allows a company to list and test for safety only whatever that company decides to call an “active ingredient.” Roundup, as well as virtually any pesticide or poison you can think of (including the fluorosilicic acid dumped into most of the nation’s drinking water), has a twisted and tortured regulatory history.  In the case of Roundup, Monsanto was allowed to tell the EPA that glyphosate is its only active ingredient, and that the others were virtually irrelevant. The company had gotten away with that ruse – using a see-no-evil, speak-no-evil, hear-no-evil EPA – since the 1970s. All that has finally changed with the Roundup trials. The world is apparently waking up as juries are finally being allowed to hear the truth. The EPA classifies an ingredient as “inert” if it does not do the actual weed-killing, but that classification doesn’t mean the ingredient is not relevant, or doesn’t make the entire cocktail more toxic.

Inert Ingredients Matter

The obvious truth is that ALL the ingredients in a given toxic cocktail matter. The truth is that a company’s calling an ingredient “inert” doesn’t necessarily make it so. That’s what three juries have discovered as Monsanto has lost all three trials over Roundup so far – for $289 million, $80 million, and $2 billion. Monsanto has lost those trials principally because all three juries have been able to hear evidence of how the entire toxic cocktail called Roundup is at least 50x more toxic than glyphosate alone. (Who’d have thunk it? Not the US EPA, which still backs Monsanto.)  As the Pilliods’ lawyer put it before the jury which reached the $2.06 billion verdict, Roundup isn’t just glyphosate. It includes other “highly more toxic” components that “have a synergistic effect with glyphosate.”

University of Richmond law professor Carl Tobias noted: “The trial judge let in a lot more in the third trial than [was let in] in the first two.  (It) seems like they heard more, and more of it was bad.”

Roundup Ingredient banned in Europe

Mr. Tobias noted that Alameda Superior Court Judge Winifred could again allow plaintiffs to reveal to the jury that a surfactant in the toxic Roundup cocktail, polyoxyethylene tallow amine, known as POEA, is banned in Europe.  POEA helps the Roundup liquid spread across leaves’ waxy surfaces and coat them instead of beading up. The Pilliod case jury was the first to learn of the European ban.  Just as it coats living plants, Roundup coats the human skin in similar fashion, then leeches into the bones and the lymph, where it triggers non-Hodgkin’s lymphoma. Just as the plants are unable to uptake vitamins and minerals to keep them alive after Roundup surfactants attach and attack, eating Roundup-contaminated GMO food attacks the human gut and damages its ability to uptake needed nutrients.

(Many obese and even morbidly obese people are sadly living nutrient-deprived lives as a result.  No matter how much they eat, they are sadly always hungry because their bodies are unable to uptake vital nutrients.)

Monsanto Rebuttal

Monanto’s lawyers’ rebuttal at trial was to claim that dozens of studies were done on surfactants and that they were all found safe. What entities performed those studies, what company paid for them, and how they were designed were all questions that came up in court and were tackled by the plaintiff’s side. Again and again plaintiffs showed in all three trials that Monsanto paid for virtually all of the studies which suggest Roundup might be safe to use. Monsanto lawyers, meanwhile, repeated over and over that hundreds of studies have shown glyophosate is safe, though virtually all of those studies were done by Monsanto or were paid for my Monsanto, or were done by scientists or researchers with vested interests in Monsanto.

The Pilliods’ lead attorney Brent Wisner told the jury that Monsanto knew for a long time that combining glyphosate with the surfactant is more genotoxic and has a “synergistic effect.” He said Monsanto knew as much as early as 2000, that the company had heard it from a consultant whose findings Monsanto then dismissed for not helping support the company.

Internal Monsanto emails showed Monsanto religiously avoided switching to a known safer surfactant in the U.S. for fear that the change would look like an acknowledgement that Roundup  was dangerous.  Switching would have alerted the world, leading to Roundup bans everywhere, and it might have led to the exact types of lawsuits the company now finds itself fighting.

Monsanto claimed the change in Roundup’s European formula was for “market tastes.”  The jury clearly didn’t buy it.

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