Organic Consumers Association

Bush Exempts Pesticide Companies from Lawsuits

October 6, 2003

Law on Pesticides Reinterpreted: Government Alters Policy in Effort to
Protect Manufacturers

By Peter Eisler

WASHINGTON -- The Bush administration has adopted a new policy that aims to
cut off farmers' ability to sue the makers of insect- and weed-killers when
their products don't perform as promised.

The new position is a sharp reversal in federal policy affecting hundreds of
thousands of farmers or anyone else who might seek damages on claims that a
pesticide didn't work as its label indicated. That might include cases in
which a chemical harms crops that it's supposed to protect, or cases in
which a chemical failed to wipe out a bug or blight that it's supposed to

In recent years, the government generally has supported people's right to
sue the manufacturer of a pesticide or herbicide in such cases. But the
administration now is taking the position that federal law bars such suits,
according to legal briefs and an Environmental Protection Agency memo
obtained by USA TODAY.

The reinterpretation will carry weight in the courts. Farmers who file
product liability, or tort, lawsuits on charges of pesticide damage now must
overcome the government's position.

The policy shift is a huge win for the pesticide industry, which pushed for
the change. Two billion pounds of insecticides, herbicides and other
agricultural chemicals are applied each year to fields, gardens and forests
in the USA. That accounts for a third of the $33 billion spent annually on
pesticides worldwide. Manufacturers face millions of dollars in claims each
year from buyers who say that their products caused damage, but there are no
independent estimates of how many judgments go against them.

Farm groups have mixed reactions to the new federal stance. Some believe
there must be limits on lawsuits over pesticide performance or manufacturers
will hesitate to experiment with new products that could help growers.

Tom Buis of the National Farmers Union, which represents 300,000 independent
farms, acknowledges the conflict. ''But if a pesticide not only doesn't do
what it says it's supposed to do, but also kills your crop, that could cost
you a year's income,'' he says. ''There has to be some legal recourse and
(this change) could really limit that.''

The administration's shift is based on a reinterpretation of the Federal
Insecticide, Fungicide and Rodenticide Act. The act directs EPA to set label
requirements for farm chemicals -- use and safety warnings -- and bars
states from setting stricter labeling rules.

Courts have had mixed opinions on whether the law ''pre-empts'' damage suits
filed in state courts by farmers who have had bad results with a product.
Many have ruled that once the EPA approves a pesticide label, the
manufacturer is insulated from claims that they didn't warn of potential
risks on everything from health problem to crop damage.

The government was silent on the matter until 1999, when the Clinton
administration asserted that the labeling law did not block claims that
related to a pesticide's ''efficacy'' or performance. The Clinton
administration took the side of some California walnut farmers who sought
$150,000 for damage to three orchards after they mixed two pesticides that
didn't warn against combined use. The farmers lost, but the federal position
became an oft-cited legal pillar for farmers in other pesticide damage

Last month, EPA General Counsel Robert Fabricant laid the legal basis for
reversing the Clinton policy in a confidential memo. ''Developments in the
law and a re-analysis . . . (of) the potential impacts of allowing such
crop damage tort claims has led EPA to rethink the agency position,'' he

The memo sets out a new agency policy based on arguments made by Bush
administration lawyers in a little-noticed brief filed earlier this year in
a case before the Supreme Court. In that case, the administration said that
the federal labeling law should ''pre-empt'' a damage suit brought by Texas
peanut farmers who claimed their crops were destroyed after they used a
manufacturer-recommended mix of two pesticides. The court did not rule on
the merits of the government's brief.

Douglas Nelson of CropLife America, a pesticide trade group, says the new
federal stance ''corrects a misread of the law'' by the Clinton

Erik Olson of the Natural Resources Defense Council says the change
immunizes pesticide makers from legitimate damage claims. The new policy
also could bolster pesticide makers' contention that federal labeling
insulates them from suits alleging that their products cause illness or
environmental damage, Olson says. ''It . . . could really be disastrous
for public health.''

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