Two weeks ago, attorneys for a Midwestern ad agency made an unusual argument in federal court: the agency is not responsible for the fact that its client’s product just happens to (allegedly) cause cancer.
On July 19th, the Armstrong Teasdale firm, representing Osborn & Barr of St. Louis, filed a 15-page document seeking to have their client removed from a class action case filed against agriculture giant Monsanto.
For context, hundreds of concurrent suits allege that glyphostate, the active ingredient in top Monsanto-made herbicide Roundup, can cause non-Hodgkin lymphoma.
In March, Robert F. Kennedy Jr. and the L.A. law firm of Baum, Hedlund, Aristei & Goldman simultaneously filed more than 200 suits in the 22nd Circuit Court in St. Louis. These cases named Monsanto and Osborn & Barr—which has long counted the company as a client and created Roundup campaigns—as co-defendants, arguing that both parties falsely presented the product as “[posing] no unreasonable risks to human health or the environment.”
Here is Kennedy’s statement tying the agency to the risks allegedly posed by its client’s product:
“[Osborn & Barr] was integral to the marketing of glyphosate. There was no way for our clients to understand the risk they were taking because of the deception of Monsanto and Osborn & Barr.”
Kennedy, who does not have any medical training, has received some criticism for his comments linking childhood vaccines to autism. Earlier this year, he said that Donald Trump had invited him to chair a “vaccine safety” commission that has not yet come to pass.
Now, Osborn & Barr’s legal team has pushed back aggressively. In the filing calling for the case to be dismissed, they argue that the initial complaint is “a jumbled hodgepodge of vagaries, ambiguities, and contradictions” that “does not set out any real facts.”
The following paragraph is even more explicit:
“Although cast in terms of ‘misrepresentations’ in an advertising campaign, Plaintiffs’ claims against the Osborn & Barr Defendants are really nothing more than an attempt to hold an advertising agency liable for bodily injuries supposedly incurred as a result of exposure to a defective product manufactured by an entirely different company. In other words, Plaintiffs are asserting product liability claims against a company that did nothing more than promote the allegedly defective product.”
Another key line holds that “Plaintiffs have not plead anything resembling a duty on the part of the Osborn & Barr Defendants to independently verify the manufacturer’s scientific data regarding a technical, complex product over two decades of providing service.”
In other words, who are we to call out alleged falsehoods presented by our client? The team proceeds to cite other cases finding that those who market or distribute products “are not subject to liability” regarding the manufacturers of those products.
Then the filing gets to the vague nature of Kennedy’s claims: “Plaintiffs allege that Osborn & Barr falsely asserted unspecified things and suppressed unspecified information about the ‘safety’ of Roundup. … Plaintiffs do not mention anything that the Osborn & Barr Defendants should have done when they purportedly began advertising for Monsanto, or anything they should have done at any other time up to 2012.”
Armstrong Teasdale, of course, would like the case immediately dismissed.
The story of glyphostate remains a matter of great disagreement. In June, the state of California announced that it would be adding the substance to a list of chemicals known to cause cancer. That decision followed a 2015 ruling in which the World Health Organization’s International Agency for Research on Cancer said, in a controversial turn, that glyphostate “probably” causes cancer.
Yet the IARC is so far the only official group to make such a judgment—and in June an epidemiologist who worked on the project that led to the declaration told Reuters that he had seen evidence showing no link between Roundup and cancer.
At any rate, a loss for Osborn & Barr, however unlikely, would be a huge blow to ad agencies as it could theoretically serve as a precedent to hold creatives responsible for side-effects stemming from the consumption of the products they promote.
Coca-Cola, anyone?