Subject: Change limits farmers from suing pesticide-makers
Date: Tue, 07 Oct 2003
From: Stephen Tvedten <steve@getipm.com>
Organization: Get Set Inc. (www.getipm.com)
To: Paul Helliker <phelliker@cdpr.ca.gov>
Director, State
of California, Department of Pesticide Regulation
Change limits farmers from suing pesticide-makers
By Peter Eisler, USA TODAY
Posted 10/5/2003 8:38 PM Updated 10/6/2003 6:28 AM
WASHINGTON The
Bush administration has adopted a new policy that aims to cut off farmers'
ability to sue pesticide and herbicide makers when bug-and weedkillers don't
work as promised on their labels and damage crops.
The new position, not announced publicly, is a sharp
reversal in federal policy toward hundreds of thousands of farmers or anyone
else who might claim damages from pesticide use.
In recent years, the government generally has supported
people's right to sue manufacturers of pesticides that are alleged to have
harmed crops or not performed as promised. But the administration 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 new interpretation will carry great weight in the
courts. Farmers who file product liability, or tort, suits on charges of
pesticide damage must defeat the government's position.
The policy shift is a huge win for the pesticide
industry, which pushed for the change. Pesticide-makers face millions of
dollars in suits each year alleging that their products caused damage.
Farm groups have mixed reactions to the new federal
stance: some say 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. 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 the EPA to set
label requirements for agricultural chemicals
warnings on use and safety and
bars states from setting stricter 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 pesticide-makers who
comply with federal labeling rules are insulated from claims that they didn't
warn of potential risks.
In 1999, the Clinton administration asserted that the
labeling law did not block such claims. It took that stand in the case 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 reanalysis ... (of) the potential impacts
of allowing such crop damage tort claims has led EPA to rethink the agency
position," he wrote.
The memo echoes arguments made by administration lawyers
in a brief filed this year in a case before the U.S. Supreme Court. In that
case, the administration said the court should nullify a pesticide damage suit
brought by Texas peanut farmers who claimed their crops were destroyed after
they used a manufacturer-recommended mixture of two pesticides. The court did
not rule on the merits of the administration's position.
Douglas Nelson of CropLife America, a pesticide trade
group, says the new federal stance "corrects a misread of the law."
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 caused broader health
and environmental harm, Olson says.
Well Mr. Helliker, As I
have written you for many years, your "registered" POISONS do not
work and are dangerous. There are
many safe and far more effective alternatives available.
Hopefully, the public and the farmers will now realize you are/were
only protecting the POISON "industry" and will stop using your
"registered" POISONS.
Respectfully,
Stephen L. Tvedten
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