Cancer patients are celebrating a string of courtroom victories after juries in three US states recently ordered Germany’s Bayer to pay more than $500m 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, pre-empting 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 representatives Dusty Johnson and Jim Costa. Lobbying disclosure records show that Bayer and the industry-funded CropLife America have made passage of the measure a priority.
The new law is needed because pesticides are “paramount to growing our food and keeping communities safe”, according to CropLife.
“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.”
In response, on 27 October, more than 150 US lawmakers signed a letter to the leadership of the House committee on agriculture expressing “strong opposition” to the pre-emption 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. Pre-emption 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.
Senator Cory Booker called 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.
Co-sponsor Johnson 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”.
Observers estimate the pre-emption amendment to the Farm Bill has a 50-50 chance of being added; a similar version is also under construction in the Senate.
The industry efforts in Washington come as scores of cities and towns around the US have moved in recent years to limit or ban certain pesticides on public grounds due to evidence of health and environmental risks. Glyphosate, the active ingredient in Roundup weedkillers sold by Bayer, is among those being restricted.
“Pre-emption 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 pre-emption efforts come as the Roundup litigation becomes ever more costly for Bayer, which bought the 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’s lymphoma (NHL) they blame on exposure to Roundup and other Monsanto 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 $1.25m in a Missouri case, $175m in a Pennsylvania case and $332m 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 in effect be blocked, or substantially weakened, if the pre-emption measure becomes law, according to plaintiffs’ lawyers and other experts. The measure would in effect make the Environmental Protection Agency (EPA) the sole authority for determining when and if certain warnings should be required on labeled products.
“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.”
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 pre-emption argument because of a 2005 US 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”.
Amid the legislative wrangling, cancer patient and Roundup plaintiff Larry Gainey said he did not want to see any pre-emption bill passed, and hoped for his own day in court.
The 65-year-old South Carolina man used Monsanto herbicides for years working as a landscaper but was diagnosed with cancer in 2011 and continues to undergo treatments. He is too sick to work now, or “do much of anything”, Gainey said.
“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, and then if you come down with a severe illness you don’t have a right to get some sort of compensation – it doesn’t seem right to me.”
This story is co-published with the New Lede, a journalism project of the Environmental Working Group
