State legislatures weigh bills to limit pesticide litigation

Bills to protect chemical companies from product liability lawsuits targeting pesticides are being considered in statehouses across the nation as Bayer continues to fight thousands of court cases alleging exposure to Roundup caused non-Hodgkin lymphoma.

According to the Modern Ag Alliance, which is backing the legislation, eight states — Florida, Georgia, Tennessee, North Dakota, Iowa, Missouri, Oklahoma and Idaho— are currently weighing legislation to make labels approved under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) sufficient to satisfy warning requirements under state civil tort law. 

In three states — Georgia, North Dakota and Missouri — bills have passed out of one chamber.

“What they’re kind of looking to say is that if the federally approved label does not require any kind of cancer warning, then the states cannot require such a warning,” said Brigit Rollins, a staff attorney at the National Agricultural Law Center. "And the label itself existing without such a warning would be a defense in court to a challenge that the pesticide manufacturer failed to warn consumers about a potential risk of using it.”

EPA's label does not carry such a warning. The agency has determined that glyphosate is not likely to be carcinogenic to humans. 

Eleven states also have petitioned EPA to clarify its regulations to provide that "state labeling requirements [that are] inconsistent with EPA’s findings and conclusions from its human health risk assessment on human health effects, such as a pesticide’s likelihood to cause cancer, birth defects or reproductive harm, constitute misbranding under FIFRA." 

Brigit Rollins (National Ag Law Center photo)

Rollins said the bills wouldn’t prevent other tort claims alleging negligence or design defects from proceeding against pesticide manufacturers, so petitioners may have other avenues for litigation. But she said “failure to warn” claims are “kind of seen as the biggest ticket in these cases,” and if petitioners are unable to take that route in challenging pesticide manufacturers, they could find it more challenging to pursue litigation.

About 114,000 Roundup cases have either been settled or are "not eligible for various reasons” as of Jan. 31, according to Bayer's 2024 annual report, leaving about 67,000 in the wings. Many plaintiffs have filed in Missouri. The company spent about $10 billion to settle about 100,000 of those claims and has set aside $5.9 billion for future cases.

Twenty-seven Roundup trials had concluded in federal and state courts in California, Missouri, Oregon, Arkansas, Delaware, Illinois and Pennsylvania as of Jan. 31, Bayer's report said. It added that it reached "favorable outcomes” in 17 of those, while plaintiffs were awarded compensatory and, in some cases, punitive damages in the other 10. 

Bayer attorneys have consistently argued that FIFRA preempts state-based failure-to-warn claims. While that argument was rebuffed by judges in the 9th and 11th circuits, it found favor with those in the 3rd Circuit, creating a split that could make it easier for Bayer to persuade the Supreme Court to take up the an appeal.

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"Bayer is considering the impact of [the 3rd Circuit] ruling on other pending litigation and is going to present its arguments, as fully embraced by the 3rd Circuit, to the U.S. Supreme Court in due course," the company's annual report said.

Modern Ag Alliance Executive Director Elizabeth Burns-Thompson, speaking at Commodity Classic last week, said the bills are also intended to prevent extensive litigation over future pesticide formulations. The alliance is a coalition of Bayer and more than 90 farm groups — mostly state farm bureau and commodity organizations — eager to keep glyphosate, the active ingredient in Roundup. 

“Glyphosate is the target of the litigation industry now,” Burns-Thompson said. “Five years from now it could be something different. If we don’t provide some consistency and clarity, this is going to continue to be a snowball effect.”

She pointed to a survey funded by the alliance, which found 88% of surveyed farmers oppose litigation that could limit access to crop protection products, 80% worry that litigation will increase U.S. reliance on foreign suppliers and 89% concerned that litigation will lead to lower crop yields.

Maury Hill, an Iowa soybean grower, told Agri-Pulse he fears future access to glyphosate, or other common pesticides such as atrazine, could be cut off if companies are unwilling to pay legal costs and choose to discontinue their manufacturing. “Sooner or later, they’re going to pull the string and say we can’t support the litigation anymore and we won’t make the product and that’s what scares me,” Hill said.

But limiting future avenues for challenging pesticide manufacturers in court has also led to the bill gaining some opposition from some agricultural organizations, like the Iowa Farmers Union.

“Iowa farmers shouldn’t have their rights taken away when they want to try to defend themselves in court,” said IFU president Aaron Lehman.

The National Ag Law Center's Rollins said the bills would only apply to litigation in their respective states, which means companies could still see failure-to-warn suits in other states. 

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