Choosing Pesti-sides

Why the debate over the pesticide liability shield is so important - and so gravely misunderstood

The Supreme Court is scheduled to hear the pesticide liability shield case on April 27. The court’s order is expected in early summer. Rural America has a lot riding on the outcome.

In the spring of 2018, Bayer was itching to close its long-sought purchase of Monsanto, the crown jewel of U.S. agricultural biotechnology. All the fuss since the closing of the acquisition has been over Roundup, but that is not why Bayer wanted to buy Monsanto so badly. Bayer wanted Monsanto’s Roundup Ready and Bt crop genes and intellectual property, which had so dramatically increased profits from the sale of GMO soybean, corn, and cotton seed.

Roundup came along with the deal. By 2018, China already had excess glyphosate production capacity. Dozens of other companies had their own glyphosate-based herbicide (GBH) product lines. Nobody was making real money selling agricultural GBHs, including Monsanto.

The real money was in the “technology fees” tacked onto the price of GMO seeds. The more traits, the more fees, the more profit. Look at the price of SmartStax corn expressing six Bt toxins and the Roundup Ready gene — close to $100/acre of seed in added “technology fees.” That’s pure profit, year in and year out, at no additional cost to the company.

GMO Fever Transformed Two Industries at the Expense of American Farmers

The GMO seed-pesticide business model proved highly profitable. Within barely five years, the pesticide industry bought or merged with all the large, legacy seed companies. Corporate consolidation metastasized, essentially turning two industries into one.

October 1, 1999, was the day DuPont announced it had bought the last shares of Pioneer, completing what was widely recognized as a hostile takeover. It was a dark day for the future of U.S. agriculture. Soon thereafter, DuPont and Dow merged, and they then split into three companies, with all the ag industrial assets, biotech IP, and seed and pesticide products moving into the newly formed Corteva.

Unfortunately, it soon became clear that inside Corteva, the corporate-ethic genes from Dow were dominate, and Pioneer’s commitment to farmers and rural America faded like the setting sun.

The mad rush to embrace — and profit from — ag biotech changed how the now seed-pesticide industry functioned and related to the world, including for regulators. There were now only four major players: Bayer/Monsanto, Syngenta, Corteva, and BASF. As most stakeholders were focused on dealing with the repercussions of the new GMO seeds, relatively little attention was paid to what was going on in the EPA’s Office of Pesticide Programs (OPP).

From the mid 2000s to 2016, the big companies incrementally gained control over OPP decision-making. They succeeded in getting many products registered for long lists of uses with few restrictions, with very few cautionary statement and warnings. Some products were used so heavily that new sorts of problems emerged that had hardly been on the radar.

The rapid spread of weeds resistant to glyphosate turned the greatest herbicide ever discovered into a fickle and untrustworthy partner. To slow the spread of resistant weeds, farmers added one, then three, and now sometimes five new herbicides into their control programs. The seed-biotech industry responded by breeding additional herbicide-tolerant traits into seeds, upping their cost to farmers. And for agribiz, the profits just keep rolling in. It turns out the spread of resistant weeds is good for business.

Coming Home to Roost

For almost 20 years now, farmers have been spraying and paying for more herbicide-GMO seed “technology packages” that work less and less well. Plus, people are getting exposed to multiple herbicides every day via food, drinking water, and the air. Some are getting sick.

And then, when science establishes a link between exposures to a given pesticide and some bad outcome — whether health related or damage to property — some people choose to go to court to seek compensation for what they have lost. This, of course, is what happened with Roundup when, in 2015, a widely respected international scientific body classified glyphosate as a “probable” human carcinogen, with the strongest evidence linking Roundup to non-Hodgkin lymphoma (NHL).

Some applicators who had handled and sprayed Roundup hundreds or even thousands of times over 20 or more years have been diagnosed with NHL. Some sued Bayer/Monsanto for compensation to cover lost wages, pain and suffering, and medical costs. The first three trials in 2018–2019 resulted in plaintiff victories and sizable jury awards.

Syngenta has been going through the same process with its paraquat and Parkinson’s disease, and Corteva dodged a bullet by quietly settling hundreds of chlorpyrifos cases involving children with disrupted neural development.

As the saying in farm country goes, the chickens have come home to roost. Manufacturers are now being held accountable in courts for harm caused by their aggressive pursuit of unsafe ways to use their products. Our weak and ineffective EPA can be thought of as an unindicted co-conspirator.

As trials grind through hundreds of internal documents, juries learn about shoddy testing and systematic registrant efforts to bury science that links a given product to adverse health outcomes. Plaintiffs often base their lawsuits on a “failure to warn” that spraying a given pesticide in a certain way, or under certain circumstances, can lead to damaged crops, animals, or people.

The Industry Fights Back

The industry is seeking a universal solution — one that would, in effect, serve as a liability shield.

Registrants (chemical companies) write the content on pesticide labels and submit them to EPA for approval. The EPA approves most labels more or less as submitted. But it is the registrant’s responsibility under federal law to assure the labels contain all necessary use directions and warnings to assure the product will not cause “unreasonable adverse effects” when used in accord with label directions. This is the registrant’s job, not EPA’s.

So, EPA approves a pesticide label, a farmer buys the product, he applies it as directed on the label, and it kills his crop. The farmer sues the manufacturer of the product because the label failed to warn about crop damage. The manufacturer refuses to pay because EPA did not require the registrant to put such a warning on the label .

The really big flaw in logic, and lie here, is that EPA knows all, and because EPA did not require a registrant to add a warning about crop damage on a herbicide’s label, the warning must not have been needed, and hence, the registrant should not be held accountable for damages if/when they occur because it did what EPA asked of it.

If the Supreme Court rules in favor of Bayer/Monsanto, farmers, weed managers, and the public will become largely dependent on the EPA to assure them that all pesticide labels have all needed warnings and requirements for Personal Protective Equipment, and also address all the unique high-risk application scenarios that arise across the country in the annual battle with pests.

Does anyone in their right mind think that EPA’s Office of Pesticide Programs is capable of effectively taking on that huge, added burden? The pesticide industry surely hopes so.

For a deeper explanation of what is at stake in the ongoing battle over preemption, see the Heartland Health Research Alliance Amicus Brief submitted to SCOTUS on April 1 as part of the Durnell v. Monsanto appeal. Charles Benbrook wrote this brief. It is focused on impacts and issues critical to farmers and rural America that have thus far not been addressed in the debate or by the courts. Access the HHRA brief at hh-ra/preemption .