Law on Pesticides Reinterpreted

Government Alters Policy in Effort to
Protect Manufacturers

PETER EISLER / USA Today 6oct03

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 attack.

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 cases.

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 wrote.

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 administration.

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.''

source: http://www.usatoday.com/usatonline/20031006/5562559s.htm 6oct03