Scandinavian countries are moving to suspend the mandated use of Bovaer, a methane-reducing additive designed to reduce bovine flatulence. A contributor to methane pollution, cow farts were supposed to be reduced by the additive to reduce climate-harming pollutant. However, there are widespread reports of collapse, lethargy, reduced feed intake, fever, diarrhea, and significant drops in milk production.
There are also reports of cow miscarriages and deaths, though most involve discomfort and farmers reported that the cows improved after cessation of the supplement. What could follow is a colossal product liability lawsuit.
Various countries, like Denmark, made the additive mandatory for the inclusion in feed only to have widespread reports of serious harm to cows. Norway and other countries have suspended the use of Bovaer. It is also used in the United States, but it is not required.
Most reports involve sickness and reduced production in dairy herds.
The question is whether the manufacturer is liable. Elanco US is still advertising the benefits of the supplement:
“Every dairy could use additional, diversified income. That’s where Bovaer® from Elanco comes in. Bovaer is one of the most scientifically researched and recognized methane-reduction feed ingredients globally. Bovaer provides an access point for dairy producers to be financially rewarded for reducing their dairy’s carbon footprint by decreasing their herd’s enteric methane emissions.”
There is also the question of the liability of countries that forced dairy farmers to use the product.
If these reports are accurate, the manufacturer could be sued for a design defect and, in light of the statements above, possible warning defects.
Given the widespread complaints, there is a legitimate question of whether the drug was adequately tested. Alternatively, the company could argue that these reports are condition-related and reflect other causes, where correlation is not causation. The company could also claim that the problems are due to incorrect use of the supplement, such as incorrect dosage or delivery.
What is interesting about this case is the possible increase in damages in countries where the supplement was mandated. It is not clear if there are added protections or waivers granted to the company in these countries.
This could be a warning, manufacturing, or design defect. We do not have enough facts. A manufacturing defect is the least likely unless it is shown that the company failed to properly monitor the concentration of the active ingredients during production or allowed them to be altered by environmental conditions.
It could prove both a warning and a design defect. The company states that “Bovaer has no negative impact on the quantity or quality of milk produced.” It cites a 2022 study to support that claim: Hristov AN, Melgar A, Wasson D, Arndt C. Symposium review: Effective nutritional strategies to mitigate enteric methane in dairy cattle. J Dairy Sci. 2022:105(10):8543-57. However, that study also adds a caveat about the use of certain ingredients in some of these methane-reducing products. For example:
“The red macroalga Asparagopsis taxiformis has a strong CH4 mitigation effect, but studies are needed to determine its feasibility, long-term efficacy, and effects on animal production and health. We concluded that widespread adoption of mitigation strategies with proven effectiveness by the livestock industries will depend on cost, government policies and incentives, and willingness of consumers to pay a higher price for animal products with decreased carbon footprint.”
Again, we need to know more about the composition of the supplement used in these countries.
Under the Restatement Second of Torts, the consumer expectations test asks whether the product is more dangerous than the expectations of the ordinary consumer. Under the more demanding test of the Restatement Third, the question is whether there is a reasonable alternative design. Both would appear viable for plaintiffs if these accounts are proven correct.
The most obvious approach in the United States would be a class action lawsuit against the manufacturer. Indeed, we could see filings in various states and the need for the Judicial Panel on Multidistrict Litigation (JPML) to intervene and consolidate the cases in a single district.
