22
Feb
State Legislation Popping Up to Limit Liability of Pesticide Manufacturers
(Beyond Pesticides, Feb 22, 2024) The Idaho Senate failed to pass SB 1245 last week which would have provided legal protection to pesticide manufacturers from “failure-to-warn” liability. This legal framework has been pivotal not only for plaintiffs, who are typically users of a toxic product, seeking redress from exposure to glyphosate-based herbicide products such as Roundup, but can also potentially extend to any toxic pesticide products. Similar bills have recently been introduced in the Iowa, Florida, and Missouri state legislatures as petrochemical pesticide industry actors such as Bayer face billions of dollars in legal settlements from victims of pesticide injury. While the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registration process permits the labeling of products with pesticidal claims based on compliance with testing requirements, the state legislation would establish EPA-authorized pesticide labels as definitive evidence that cannot be challenged in a court of law.
The Idaho legislation, SB 1245, was introduced in January in the state Senate by Senator Mark Harris, who represents Soda Springs County, which has North America’s largest elemental phosphorus mine (phosphorus is a critical ingredient in developing glyphosate). Proponents of SB 1245 argue, “[This bill] protect[s] companies that produce safe pesticides critical to agriculture in Idaho and beyond.” Idaho Press continues,” Sen. Harris said the bill does not restrict lawsuits against pesticide manufacturers for a number of claims, including product defects, drift or misapplication, or if the manufacturer fraudulently conceals known facts about the product.” While these other legal avenues are possible, the overwhelming majority of successful cases for pesticide injury lawsuits fall under “failure-to-warn” claims. Brigit Rollins, a staff attorney at the National Agricultural Law Center, describes this liability framework as, “a type of civil tort that is frequently raised in products liability cases. Unlike negligence and design defect…failure to warn does not argue that a product has physical faults. Instead, a plaintiff typically raises failure to warn claims to allege that a product manufacturer failed to provide adequate warnings or instructions about the safe use of a product.”
Under this new industry push in different state legislatures, the product liability legal framework would be undermined, rendering victims around the United States without effective legal recourse and shielding industry actors such as Bayer from billions of dollars in ongoing and future judgments and settlements. As of 2022, Bayer settled over 100,000 lawsuits on glyphosate/Roundup, paying out approximately $11 billion. The company faces an additional 30,000 lawsuits pending, according to reporting by Forbes.
Meanwhile, a bill, SF 2392, similar to the bill in Idaho has been introduced in the Iowa Senate. Prior to opting to introduce the legislation, two study bills had been considered by both the Senate and House Agriculture Committees without much notice. Another kindred bill, SB 1416, was introduced in the Missouri Senate last Tuesday and will establish the following, “Under the act, a pesticide registered by certain federal agencies or consistent with certain federal pesticide labeling requirements or health assessments shall satisfy any warning label requirement regarding health or safety or any other provision of current law.” As of this publication, it is currently unclear whether this bill will move forward or if a companion bill will be filed in the House. A similar bill, SB 1252, introduced in the Florida Senate, explicitly states, “A products liability action, including a failure to warn, may not be brought or maintained against any distributor, dealer, or applicator,” barring several exemptions. This bill was introduced in January and still must be voted out of two more committees (Agriculture and Rules) after passing through the Judiciary committee on February 5. A similar version in the Florida House, HB 347, passed both the Civil Justice subcommittee and Judiciary committee earlier this month and was introduced to the House on February 15.
Beyond Pesticides has covered the history of products liability litigation against petrochemical companies such as Bayer, including a 2004 U.S. Supreme Court ruling (Bates v. Dow AgroSciences LLC). In the past, the Supreme Court has protected the rights of pesticide injury victims to seek legal recourse: In this case, “the court found, ‘The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against preemption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984). Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items.’”
More recently in 2022, “the Ninth Circuit Court of Appeals voided EPA’s ‘interim registration review’ decision approving continued use of glyphosate, issued in early 2020 saying, ’EPA did not adequately consider whether glyphosate causes cancer and shirked its duties under the Endangered Species Act (ESA),’ and the U.S. Supreme Court refused to consider (deny certiorari) a Bayer petition to save the company from being held accountable to those diagnosed with cancer after using glyphosate herbicides.”
As Beyond Pesticides previously reported, there are numerous adverse health effects associated with glyphosate-based Roundup exposure, including documented studies outlining adverse health effects on the nervous system. A study by Arizona State University found that, “glyphosate can infiltrate the brain through the blood (blood-brain barrier), increasing neurological disease risk.” This finding is alarming given that the rate of Alzheimer’s disease amongst the U.S. population is projected to double by 2050. In 2015, the International Agency for Research on Cancer (IARC) determined that glyphosate is probably carcinogenic, potentially leading to cancers such as non-Hodgkin’s Lymphoma. Glyphosate, alongside other herbicides such as dicamba and glufosinate, have also been found to lead to higher populations of antibiotic-resistant bacteria in soil, according to a 2021 article in the journal, Molecular Biology and Evolution. For more information on glyphosate and its potential health impacts, see the Pesticide-Induced Diseases Database.
For information on how to protect yourself and your loved ones from petrochemical pesticide exposure, see Gateway on Pesticide Hazards and Safe Pest Management and Non-Toxic Lawns and Landscapes to find alternative land management systems rooted in organic principles. For more information on the health benefits of organic food products relative to conventionally grown, see Eating With a Conscience. If you believe that you may have been exposed to pesticides, see Pesticides Emergencies to find contact information for lab testing, lawyers, or other information.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Idaho Press
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