WHEN YOUR PRODUCT POSES A CANCER RISK

In the case of Johnson v Monsanto recently decided in California in the United States, a jury recently delivered a ground-breaking judgement against agriculture products manufacturer, Monsanto.

The case involved a 46 year old school gardener who was diagnosed with Non-Hodgkin’s lymphoma, a form of blood cancer, in 2014 after having substantial exposure to Roundup, a weed-killer manufactured by Monsanto. Mr Johnson’s legal team sued the agricultural giant, arguing that the active ingredient in the weed killer, a chemical compound called Monsanto, was the ‘likely’ cause of his cancer. Following this line of argument, the San Francisco jury that deliberated the matter found that Monsanto had failed to warn consumers Monsantoof the risk posed by its products that contained this active ingredient. Consequently, they granted damages totalling US$285 million to Mr Johnson; $250 million of which constituted punitive damages and $33 million as compensatory damages.

Although the robust judgment comes as a shock to many observers, in particular those from South Africa where large damage awards are less prevalent as they are in the United States, it shows us that claims of this type, and there are a multitude of similar claims that can be raised, can be successful in the courts. For the South African consumer, the question that arises is whether such a claim would be worth pursuing here, a question that brings to the fore section 58 of the Consumer Protection Act of 2008 which places an obligation on the producers to ‘draw the fact, nature and potential effect of a risk’ of an unusual nature or which the consumer could not reasonably be expected to be aware of. Should the supplier fail to comply with the above and any harm arises, be it death, injury or illness to the consumer the liability provisions of section 61 of the CPA kick in, entitling the consumer to a claim for damages that include economic loss. It is therefore possible for a consumer in a similar position to the claimant in the Monsanto case to bring a claim in the South African courts. However, what remains open to speculation is whether the courts would be willing to award equally heavy damages.

What is the message for manufacturers and retailers of products that hold a risk of causing cancer or other disease in users of the product, even if the risk is remote, or the use of the product is only one of several contributory causes? Much of the legal risk is removed if it is disclosed to consumers in your packaging- leaving that information out was Monsanto’s big mistake. Feel free to contact us to assist with drafting the necessary wording for your package insert, website, set of usage instructions etc. We can also advise individual suppliers on other methods to ameliorate your risk of facing a large damages claim from a consumer or class of consumers.

Our thanks to our researcher, Nyasha Nyatsambo, currently a Masters student at UCT, for his input into this article.

  ,