Battle brewing over proposed US law that would protect pesticides

Cancer patients are celebrating a string of courtroom victories after juries in three US states recently ordered Germany’s Bayer to pay more than $500 million in damages for failing to warn about the health risks of its Roundup herbicides. But the consumer wins come as proposed federal legislation backed by Bayer and the powerful agricultural industry could limit similar cases from ever going to trial in the future.

Dubbed the Agricultural Labeling Uniformity Act, the proposed measure would provide sweeping protections for pesticide companies and their products, preempting local governments from implementing restrictions on pesticide use and blocking many of the legal claims that have been plaguing Bayer, according to the American Association for Justice (AAJ) and other critics.

The measure, which was introduced over the summer, has been gaining traction as a potential amendment to the pending Farm Bill. More than 360 agricultural organizations are throwing their support behind the measure, which was introduced by US Reps Dusty Johnson and Jim Costa. Lobbying disclosure records show that Bayer and the industry-funded CropLife America have made passage a top priority. A similar measure is under consideration in the US Senate.

The new law is needed because pesticides are “paramount to growing our food and keeping communities safe,” according to CropLife.

In response, on Oct. 27, more than 150 US lawmakers signed a letter to the leadership of the House Committee on Agriculture expressing “strong opposition” to the preemption measures, saying they would overturn “decades of precedent” and have a “significant impact” on public safety.  

Local laws that could be in jeopardy include many that restrict pesticide use near schools, parks, and playgrounds, and protect drinking water supplies and wildlife. Preemption of state and local authority would additionally “limit accountability for manufacturers who fail to adequately warn consumers about the hazards posed by certain high-risk pesticides,” the letter warns.

Sen. Cory Booker dubbed the legislation “reckless” and “irresponsible” in a press call on Thursday. “People are making this a priority in the upcoming Farm Bill, and frankly to me it is outrageous,” Booker said.

A “threat to democracy”

The industry efforts in Washington come as scores of cities and towns around the US have moved in recent years to limit and/or ban certain pesticides on public grounds due to evidence of health and environmental risks. Glyphosate, the active ingredient in Roundup weed killers sold by Bayer, is among those being restricted.

“Preemption is a threat to democracy and public health,” said Kim Konte, who leads Non-Toxic Neighborhoods, a grassroots organization that works with communities across the country to adopt pesticide-free practices. “Parents and our city leaders, not the pesticide industry, should have the power to protect our children from hazardous pesticides in the parks where they play.”

Notably, the preemption efforts come as the Roundup litigation becomes ever more costly for Bayer, which bought Roundup maker Monsanto in 2018. The company has already agreed to pay out billions of dollars in settlements to tens of thousands of people suffering from non-Hodgkin lymphoma (NHL) they blame on exposure to Roundup and other Monsanto’s glyphosate-based herbicide brands.

Additionally, the company has been ordered by multiple juries to pay hefty damage awards. Last month alone, juries ordered verdicts totaling $1.25 million in a Missouri case; $175 million in a Pennsylvania case and $332 million in a California case.

Jury selection begins later this month in a case in San Benito, California, and several other trials are also on the dockets in multiple states. Among the central claims made in the nationwide litigation is that Monsanto’s products should have carried warnings on their labels telling users of a cancer risk.

Such claims would effectively be blocked, or substantially weakened, if the preemption measure becomes law, according to plaintiffs’ lawyers and other experts. The measure would effectively make the Environmental Protection Agency (EPA) the sole authority for determining when and if certain warnings should be required on labeled products, they say. 

“It’s an abomination,” said Brent Wisner, a member of the legal team that won the first Roundup case to go to trial. “I’m doing everything in my power to stop it.”

Johnson, co-sponsor of the House measure, disputes the bill would have any “direct impact on any current or future litigation” or prevent local regulation of the “sale and use of pesticides.” 

But Sarah Rooney, senior director of federal and regulatory Affairs for AAJ, said the intent of the proposed law is clear.  “Wiping out state and local laws is a top priority of these corporations because they don’t want people to seek justice when they develop cancer due to Roundup exposure. We’re urging Congress to reject these proposals.”

Under pressure

Bayer is under pressure from investors to resolve the Roundup litigation, and has argued in multiple courts that under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) the EPA’s stance that Monsanto’s herbicides are not likely to cause cancer essentially bars complaints that Bayer and Monsanto failed to warn of a cancer risk. 

Courts have rejected the preemption argument because of a 2005 U.S. Supreme Court ruling in a case titled Bates v. Dow Agrosciences, which established that the EPA’s approval of a product does not rule out claims brought under state laws. If the proposed bill is passed, it would undo the Bates precedent, according to the AAJ.

Bayer did not answer a question about whether or not it initiated the legislation, but said in a statement that it supports the measure because “the future of American farming depends on reliable science-based regulation of important crop protection products that the US Environmental Protection Agency (EPA) has determined safe for use.”

When asked why the industry thought the legislation was needed, CropLife spokeswoman Genevieve O’Sullivan said “farmers and consumers need to not only be able to trust the regulation of the products they use but trust that the government has made decisions based on agreed-upon and established science, facts, and data,” 

Amid the legislative wrangling, cancer patient and Roundup plaintiff Larry Gainey said he does not want to see any preemption bill passed, and hopes for his own day in court.

The 65-year-old South Carolina man used Monsanto herbicides for years working as a landscaper until he was diagnosed with cancer in 2011. He continues to undergo treatments but is too sick to work now.

“I just feel like, my gosh man, you go in a store and you buy a product and you think it’s safe to use,” Gainey said. “And then if you come down with a severe illness, if you don’t have a right to get some sort of compensation, it doesn’t seem right to me.”

(This article is co-published with The Guardian.)  (Photo by Elijah Mears on Unsplash.)