The United States is at a critical moment regarding our ability to effectively regulate pesticides and hold the companies that manufacture them accountable. Pesticide corporations, led by Bayer’s Modern Ag Alliance are throwing the kitchen sink at federal policy, the courts, and state regulation to try to get immunity from lawsuits.
Where things stand with Failure to Warn
Right now the Supreme Court is considering Monsanto v. Durnell, a case which asks whether pesticide corporations can be sued by individuals for failing to use labels that adequately warn the public of the health risks posed by their products. The case is one of several strategies in Bayer’s push to put an end to the “Failure-to-Warn” litigation that has awarded billions to people who got cancer after using Roundup.
Bayer/Monsanto has been trying to get lawsuit immunity legislation passed in state assemblies for the past three years, introducing it in one state after another. Fortunately, they have only been successful in three states because the people have fought back against these bills. They are now trying to get lawsuit immunity for pesticide companies enshrined in the farm bill, the omnibus legislation that will lock federal food and farming policy into place for the next five years. After public push-back, the House removed it from their version of the bill. However the House compromised with industry and left in four sections that would walk back progress made to protect public and environmental health from pesticides.
Why Bayer wants lawsuit immunity for pesticide companies and why they shouldn’t get it
Since 2018, Bayer/Monsanto has been ordered to pay out billions of dollars to people with non-Hodgkin’s lymphoma who used their flagship product Roundup. There are tens of thousands of similar lawsuits outstanding. Bayer argues that they should be immune to such lawsuits on the grounds that the language in a statute called FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act) gives EPA universal control of approving labels. Their argument is that if the EPA registered Monsanto’s Roundup labels without mentioning cancer risk, that preempts individual rights to sue Bayer for failing to warn about cancer risks and restricts states from requiring additional labeling.
What is being lost in the debate about labeling is that the discovery process during jury trials revealed that Roundup’s claim to safety is a myth. The science EPA used to approve the proposed labels for Roundup relied heavily upon industry-submitted studies. These court cases unearthed internal Monsanto documents showing employees ghostwrote scientific studies, sought to influence regulatory assessments, and at times downplayed or disputed evidence of glyphosate’s cancer risks. These communications, now called the Monsanto Papers, led to a major scientific journal retracting a highly-cited article from 2000 on glyphosate, after evidence revealed in the Monsanto Papers showed undisclosed corporate authorship and other ethical concerns.
All of this shows how important it is that the people of the US continue to have access to litigation. The discovery process in court cases are a critical tool to hold corporations accountable for their actions. It also illustrates how scientific review and independent research provide necessary checks on product safety claims. Combined with the discovery process, objective third-party science has uncovered important safety risks for pesticides that need to be addressed.
Preemption of state and local laws and regulation
An additional danger created by lawsuit immunity language in the federal farm bill or a ruling in favor of Monsanto in the Supreme Court case is that states would be preempted from passing or enforcing current laws that require additional labeling or risk disclosure.
A Supreme Court ruling in favor of Monsanto/Bayer would make EPA’s label, regardless of its accuracy or relevance, the final say. This would reverse the Supreme Court’s 2005 decision in Bates v. Dow Agrosciences where the Court affirmed that EPA-approved pesticide labels are intended to be a minimum standard. This supports a state or local government’s right to set their own higher standards for pesticides and indicates that EPA labels do not categorically shield manufacturers from state-law liability. Manufacturers are still responsible for ensuring their use labels disclose potential adverse effects they know or should have known about, even if the EPA does not include them on the federal label.
Shielding pesticide companies ignores those in harm’s way
Many who have the most exposure to potentially dangerous pesticides have very little choice in the matter. Many people who mix and use pesticides have those products built into the expectations of their work. Farmworkers and groundskeepers are told what products to use and risk the loss of their livelihood if they refuse to use them. When farmers use genetically modified (GM) seed, engineered to be resistant to a specific herbicide product, they get locked into using that product. And, nearby farms often find it difficult to plant non-GM crops because those crops may die when the herbicide is sprayed.
This doesn’t even account for the continuous exposure to pesticides that people get when pesticides drift. Pesticides are known to move away from their target locations and find their way into the water we drink, the air we breathe and the food we eat.
When the end-user has less choice, shouldn’t there be a greater obligation to warn, protect, and prevent harm? And if new evidence comes to light showing that science is being ignored or downplayed, shouldn’t individuals retain their right to sue?
The Senate must reject all sections in the farm bill that will leave us at the mercy of pesticide companies and corporate agriculture. The Supreme Court must protect people’s right to hold corporations accountable for harms their products cause, and we must let the review of science work at all levels: in the courts, at the federal and state levels. We certainly should not give pesticide corporations immunity from failing to warn us about the health impacts of their products.
