US law on pesticides reinterpreted to protect manufacturers     

The Bush administration has adopted a new policy that aims to cut off farmers’ ability to sue the manufacturers of insecticides and herbicides when their products fail to perform as promised.

The position of the Bush administration is a sharp reversal in federal policy affecting hundreds of thousands of farmers and anyone else who might seek damages through claims that a pesticide did not work as its label indicated. It could include cases in which a chemical harms crops that it is supposed to protect, or cases in which a chemical failed to wipe out an insect pest or blight that it is supposed to attack.
    In recent years, the US government generally has supported the right to sue a manufacturer of a pesticide in such cases. But the administration is now taking the position that federal law bars such suits, according to legal briefs and an Environmental Protection Agency (EPA) memo. The reinterpretation will carry weight in the courts. Farmers who file product liability (or tort) lawsuits on charges of pesticide damage must now 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 US accounting 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.
    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. But others believe that legal redress must be open to farmers if a pesticide does not do what it should, particularly if it kills your crop.
    The shift by the administration is based on a reinterpretation of the Federal Insecticide, Fungicide and Rodenticide Act. The act directs the EPA to set label requirements for farm chemicals. Many courts have ruled that once the EPA approves a pesticide label, the manufacturer is insulated from claims that they did not warn of potential risks on everything from health problems to crop damage.
    The government was silent on the matter until 1999, when the Clinton administration asserted that the labelling law did not block claims that related to a pesticide’s ‘efficacy’ or performance. EPA General Counsel Robert Fabricant, laid the legal basis for reversing the Clinton policy in a confidential memo. Douglas Nelson of CropLife America, a pesticide trade group, says the new federal stance ‘corrects a misreading of the law’ by the Clinton administration.
    Erik Olson of the Natural Resources Defense Council says the change immunises pesticide makers from legitimate damage claims. The new policy could also bolster pesticide makers’ contention that federal labelling insulates them from suits alleging that their products cause illness or environmental damage.

Based on an article by Peter Eisler, USA Today, 06/10/03, www.organicconsumers.org/foodsafety/bushpesticides100703.cfm

[This article first appeared in Pesticides News No. 62, December 2003, page 15]