These attacks, based on an uncritical and selective quoting of a recently published deposition of Dr Portier by Monsanto’s lawyers, suggest he would have been paid by a US law firm to influence IARC’s evaluation of glyphosate, to lobby EU decision-makers on glyphosate, and that he failed to be transparent about it.
Double-checking the presentation of the facts by Monsanto’s lawyers, however, provides a much less scandalous story – and shows that most of these accusations are false and, combined with the many insults he is now receiving on social media, should rather be seen as outright attempts at character assassination. We completed our analysis1 with an interview of Dr Portier on 17 October 2017. Here are our main observations:
- Dr Portier’s status in the IARC meeting was “invited specialist”: he was not allowed to draft text or emit recommendations that could influence the outcome of the meeting.
- Dr Portier was indeed hired by a US law firm now suing Monsanto on behalf of alleged RoundUp victims. But he only received a first draft of the consultancy contract on 29 March 2015, 19 days after the end of the IARC meeting and the adoption of the conclusions. The contract was signed in early April 2015.
- Dr Portier was free to reveal – and did reveal – the existence of the contract (which Corporate Europe Observatory saw) to third parties. The non-disclosure clause contained in the contract only applies to the work products bought by the firm to him, mainly scientific advice and reports.
- Hardly any work was done by Dr Portier for the law firm in 2015 and little in 2016. More than 90 per cent of the total work performed and billed by Dr Portier to the law firm occurred in 2017, as part of his ongoing work as an expert witness.
- The rate he has been charging the law firm for this, $450/hour, is standard in the US for such experts and on the lower end compared to other experts in the same lawsuit.
- Dr Portier’s considerable scientific work on glyphosate in the US and the EU cannot have been paid by the law firm via this contract and, according to him, was not.
- Before December 2015, when he first disclosed the contract’s existence to officials of the European Commission, Dr Portier did not do it as he was insufficiently aware of the need to do so. Similarly, he did not disclose it in May 2016 correspondence to EPA officials, as he thought the fact that doing this work in a personal capacity made the disclosure unecessary - at the same time, Dr Portier had made his interest public in a scientific journal in March 2016 and usually systematically disclosed it afterwards.
- Being paid for consultancy work on a given issue definitely means having a financial interest: this has measurable consequences on a scientist’s position on this issue and should always be disclosed in a regulatory or scientific context. But as long as Dr Portier is not part of, or officially advising, a regulatory body at the same time, he is not in a situation of conflicting interests.
- These events show that, again, industry and its allies don't hesitate to use insults, defamatory remarks and falsehoods to destroy a scientist's reputation when this person's work threatens their interests.
IARC’s classification of glyphosate and Dr Portier’s involvement
The IARC meeting on Monograph 12 (including glyphosate) ended on 10 March 2015. On 20 March, the meeting conclusions were published on IARC’s website and in The Lancet Oncology.
Because Dr Portier was at the time working two days a week for a US environment protection NGO (the Environmental Defense Fund), IARC informed him when they invited him to help with the Monograph 112 (Carcinogenicity of tetrachlorvinphos, parathion, malathion, diazinon, and glyphosate) that since he was in an apparent conflict of interest situation he would only be involved as an “invited specialist”2 and not as a member of the Working Group. As such, Dr Portier was not allowed to draft text or emit recommendations that could influence the conclusions of the Working Group.
Judging from the questions of Monsanto’s lawyers during Dr Portier’s hearing and other media reports, it appears that the pesticides industry and its allies are trying to push in the media a narrative according to which Portier would have unduly influenced IARC’s deliberations on glyphosate and particularly the evaluation of the animal evidence. This despite the fact that IARC’s Working Group conclusion to classify glyphosate as a probable human carcinogen (category 2A) was unanimous, and that Monsanto’s observer to the IARC meeting, Dr Thomas Sorahan, reported to Monsanto on 14 March that
“I found the Chair, sub-chairs and invited experts to be very friendly and prepared to respond to all comments I made. … In my opinion the meeting followed the IARC guidelines. Dr Kurt Straif, the Director of the Monographs programme, has an intimate knowledge of the IARC rules and insists these are followed.”
Dr Portier’s contract with the law firm Lundy, Lundy, Soileau & South
Around 26 March, by his own estimate, Dr Portier was contacted by the US law firm Lundy, Lundy, Soileau & South. He had been recommended by a third party to the law firm. Dr Portier declared to CEO that he made a mistake in his deposition and that his contracts with the Lundy Lundy law firm only started then. He also stated that he never had a contract with a law firm before. He also made clear in his deposition that he had no knowledge of the carcinogenicity evidence around glyphosate before the IARC meeting.
On 29 March 2015, Dr Portier received two draft consultancy contracts, one on glyphosate and another substance reviewed by IARC earlier (which he cannot disclose but says is not a pesticide and not even a chemical). The contracts themselves were signed a few days later, after Dr Portier consulted with his family.
According to his contract, which he shared with Corporate Europe Observatory, Dr Portier was hired by the law firm, “for the sole purpose of consulting with these Attorneys in connection with anticipated litigation involving claims arising from injury or damage caused, or potentially caused, by exposure to Roundup and/or other herbicides containing Glyphosate”. He was paid a US$5,000 retention fee at the signature of the contract.
The law firm, based in Louisiana, USA, is now one of several suing Monsanto on behalf of alleged victims of its glyphosate pesticide in the Roundup multidistrict litigation currently disputed in a US District Court in San Francisco. This lawsuit was initiated in the course of summer 2015 and is ongoing.
The consultancy contract on glyphosate and Roundup is also ongoing, and through Lundy, Lundy, Soileau & South, Dr Portier also provides consultancy services to the law firm Weitz & Luxenberg, also representing alleged victims of Roundup in the same mass tort lawsuit.
The second consultancy contract ended in 2015 and Dr Portier only billed a couple of hours of work for it to Lundy Lundy.
The non-disclosure clause in the contract
The contract contains a non-disclosure clause forbidding Dr Portier to disclose all the contract’s work products to third parties – but not at all, as has been written, the existence of the contract itself. This is a standard clause by which the law firm claims exclusive property on what Dr Portier is selling them. The clause, reproduced in part below, also stipulates that the law firm commits to not “fund, participate, sponsor of be involved in any of your past, present or future research or scientific studies” performed by Dr Portier.
“2. All work conducted in connection with this Engagement as a consulting expert and/or a testifying expert witness pursuant to the direction, authority, and/or funding of the referenced Attorneys, including any reports, drafts, data, notes, work papers, correspondence, or other work documents you may generate or receive in connection with the Roundup Cases shall be considered and treated as confidential work product. All such documents and materials (and any information they contain that is not publicly available data or previously available to you) may be used only for purposes of this Engagement and may not be disclosed to anyone without our written consent in advance. This Engagement does not pertain to nor shall it affect your research and/or scientific studies, and it is expressly understood and acknowledged that we have not, nor will we fund, participate, sponsor or be involved in any of your past, present or future research or scientific studies.”
The hourly rate obtained by Dr Portier in the contract is US$450. This appears to be a rather standard hourly rate for a toxicology expert witness in the State of Louisiana. As a point of comparison, other expert witnesses involved in the ‘Monsanto Papers’ court case charge more. For instance, Dennis Weisenburger is charging US$500 an hour to the law firm Andrus Wagstaff, while Chadi Nabhan is charging US$550 an hour to the law firm The Miller Firm.
Work products delivered and billed to the law firm by Dr Portier
In 2015, by his own account, Dr Portier would have billed less than US$2,000 to the law firm, for a meeting in San Francisco lasting a few hours where he was providing expert advice on a specific type of cancer and the IARC process. This was subtracted from the US$5,000 he received when signing the retention agreement.
In 2016, by his own account which is consistent with what is discussed in his deposition, Dr Portier would have billed less than US$12,000 to the law firm, in relation to a report drafted by the Cancer Assessment Review Committee (CARC) of the US Environment Protection Agency (this report appeared by ‘mistake’ on the US EPA website and was then removed). There is an error in the deposition’s transcript, as the text says “release from the Clark subgroup of EPA…”. The executive summary of this report is 4 pages long but the actual report is 87 pages long (which is consistent with the figure of 19 hours spent to analyse it). This is actually important because some of the attacks paint the 19 hours spent on this as hidden lobbying fees.
In 2017, by his own account, Dr Portier billed more than 90 per cent of his work to the law firm since the beginning of the contract:
Until February 2017, the work performed by Dr Portier was, according to him, strictly that of a scientific advisor. After this date, he also started working as an expert witness for the law firm in the context of the trial.
- His main deliverable is his expert report for the trial, which has just been made public. It is 250 pages long, involved the review of over 250 scientific documents, and in Dr Portier’s assessment took 6 weeks of work (239 hours), representing about US$108,000.
- He also undertook several meetings with the lawyers, with additional consultancy work.
In June 2017, according to Monsanto’s lawyers, the total sum invoiced by Dr Portier to the law firm amounts to about US$160,000.
At the time of writing this factsheet, Dr Portier still needs to bill additional work products to the law firm including his Rebuttal report to Monsanto’s experts and his deposition, amounting to another 60 hours or so of work (about $30,000). If he testifies in the court case, there are likely to be additional hours and compensation.
Disclosure of the contract
- Disclosure to EU decision-makers: A recurring reproach made to Dr Portier is his non-disclosure of his interest – the contract with the law firm – in a major open letter from late November 2015 (two weeks after EFSA’s assessment of glyphosate) to EU Health Commissioner Andriukaitis, which he coordinated and was co-signed by 96 scientists. The reproach is justified: even though Dr Portier had hardly performed any work for the law firm by then, the perspective of being remunerated for more work already existed: especially in such a politically charged context, the disclosure should have been made.
Dr Portier explained to Corporate Europe Observatory that he did not think it was necessary since he was acting as a private citizen and his general advocacy work on glyphosate was not paid for by the law firm.
That said, the disclosure was made almost immediately afterwards. Dr Portier explained both to Corporate Europe Observatory and in his deposition that he mentioned the existence of the contract to European Commission officials in early December 2015, a few days after the open letter was sent, when he requested a meeting with the European Commissioner for Health, Vitenis Andriukaitis, which eventually took place on 22 January 2016.
According to Dr Portier, officials of the European Commission mistakenly asked him to register to the lobbying transparency register, which he did on 21 December 2015, before cancelling their request as they realised he was acting as an independent academic and not as a lobbyist.
EFSA then answered to the open letter, and in the public response to this letter, made in a scientific journal by the open letter authors in March 2016, Dr Portier’s interest is disclosed.
From then on, Dr Portier did disclose this interest in the EU context, again recently in his letter to the President of the European Commission Jean-Claude Juncker, and in his presentation to the special hearing organised on 11 October 2017 in the European Parliament on glyphosate and the Monsanto Papers.
- Disclosure to national decision-makers:
- On 28 September 2015, Dr Portier appeared in front of the German Bundestag for a hearing on the differences between IARC’s glyphosate assessment and that of the German Federal Institute for risk assessment, the BfR. From the deposition and the notes of the discussion it does not appear that the existence of the contract was disclosed – this is consistent with Dr Portier’s apparent insufficient awareness of the need for such disclosure at that time.
- The accusations of Dr Portier not disclosing his interest in May 2016 correspondence with EPA officials he knew from his past work as a government official can be dealt with similarly: as this work was not made on behalf of the law firm nor paid by it, Dr Portier did not see any reason to disclose it. But while this is true, disclosing his financial interest would have been more appropriate in this regulatory dispute context (even though Dr Portier had already disclosed his interest publicly in March 2016 he did not mention it in his correspondence).
On 4 October 2016, Dr Portier submitted comments to the US Environment Protection Agency (EPA) prior to their 16 October 2016 SAP meeting on the Carcinogenic Potential of Glyphosate (which was eventually postponed to December 2016 following pressures of the pesticides industry). While the disclaimer at the beginning of Dr Portier’s comments states that these comments were written with his own resources and his own time, there is no mention of competing interests.
According to Dr Portier, this is because he was explicitely asked by an EPA official not to: “I disclosed [my contract] to the EPA staffer in charge of receiving comments for their SAP meeting and was informed I only needed to include this information if I was providing comments on behalf of the law firms (which I was not)”.
Accusations that Dr Portier’s scientific and advocacy work on glyphosate was paid for by the law firm
Dr Portier denies strongly these accusations: “I was in no way compensated for any of my letters, any of my public complaints to EPA or EFSA or BfR or EChA, any of my presentations on glyphosate in any forum. The comments I sent to EFSA, EChA, EPA were not done at the behest of the law firm, and in fact preceded the report I wrote as an expert witness in this one case”.
This is consistent with the clause of the contract where the law firm commits to not “fund, participate, sponsor or be involved in any of your past, present or future research or scientific studies”.
The weak point in Dr Portier’s argumentation, however, which is exploited by Monsanto’s lawyers, is that the knowledge created in the context of his analysis for the law firm belongs to him and can therefore be transferred to his other areas of work, including his presentations to regulators. Besides, being paid for this work creates a measurable bias. This is why, for instance, Corporate Europe Observatory has been recommending for a long time to the European Food Safety Authority to exclude scientists with consulting contracts with the food industry from its panels.
However, since he is not part of a public regulatory body nor applying to one, Dr Portier is not in a conflict of interests situation: he simply has acquired, with this contract, a financial interest in relation to glyphosate. Whether the US legal system, with law firms suing companies on behalf of victims as a business model, is a good one is an interesting debate, but a separate one.
Picture: European Parliament - Benoît Bourgeois - Joint ENVI/AGRI committee meeting.Hearing on the Monsanto papers and Glyphosate
- 1. One reason we are writing this factsheet to defend Dr Portier is because he helped us a lot in our work. We have therefore analysed the accusations in great detail. He assessed the quality of the raw data we had obtained from EFSA, and performed an analysis of this data which revealed very important limitations in the EU agencies’ work on glyphosate. See: Scientist writes to Juncker: new tumour evidence found in confidential glyphosate data
- 2. This is a special category of experts invited to help the members of the Working Group by answering the questions they would have (Portier is a biostatistician) but who are not allowed to contribute to the evaluation itself. This protects the integrity of the institution’s work.
CEO has been recommending since 2013 to EFSA to adopt this approach for its Independence Policy (no real or apparent expert allowed on panels and all expertise gaps filled without endangering the integrity of the process by inviting such “invited specialists”).