Pesticides

The Environmental Protection Agency (EPA) defines a pesticide as any substance intended for preventing, destroying, repelling or mitigating any pest, or for use as a plant regulator, defoliant, or desiccant, or as a nitrogen stabilizer. Pesticides used in homes, gardens and commercial agriculture include chemicals that kill or repel insects, fungi and small animals. It is known that pesticides can cause headaches, eye and skin problems, and abdominal issues such as nausea and vomiting. Some scientists believe that pesticide poisoning can lead to birth defects, neurological damage and cancers.

Liability issues exist for pesticide manufacturers and workplaces that use pesticides. Pesticide-based lawsuits generally include claims for breach of product liability law (warning defect) and negligence. General liability policies usually include a pollution exclusion, however, meaning that coverage for pesticide-based liabilities are prohibited if the pesticide is defined as a pollutant.

Background

Pesticides are made up of ingredients referred to as "active" or "inert." Active ingredients are the chemicals that repel, prevent, kill or mitigate a pest. With respect to plants, active ingredients regulate, defoliate, desiccate or stabilize the nitrogen in a plant. Pesticides are categorized by the effect of their active ingredient. The EPA reviews pesticides under separate processes according to whether they are antimicrobial, biopesticides, or conventional. Antimicrobial pesticides destroy microorganisms such as bacteria or viruses. Biopesticides are made from natural materials such as animals and plants. The “conventional” pesticides category covers everything not included in the previous two categories.

Pesticide products contain at least one active ingredient plus added inert ingredients. Inert ingredients can include chemicals, compounds, and food or natural substances such as edible oils, spices, herbs, beeswax or cellulose. An inert ingredient may serve several functions, for example, acting as a solvent, extending pesticide shelf life, improving product safety, slowing degradation of the pesticide in sunlight or aiding ease of application. Inert ingredients are not necessarily non-toxic, and each ingredient must be approved by the EPA before being included in a pesticide. The amount of the inert ingredient included may be limited in pesticides that are intended to be applied to food or to animal feed. Manufacturers are not required to list inert ingredients by name or percentage on product labels, which must provide only the total percentage of all inert ingredients.

Scientists credit pesticides with dramatic increases in crop yields, but with the understanding that pesticides, because they are designed to adversely affect living organisms, can harm the environment as well as humans and animals.

Injuries and Damages

Concern about pesticides became widespread after the 1962 publication of Rachel Carson’s “Silent Spring”, which detailed the negative ecological and health effects of the insecticidal DDT. Still, pesticides are widely acknowledged to be useful; research often cites excessive or improper application as the main causes of damage. Human exposure to pesticides most often occurs through ingestion or direct exposure. Pesticides can be ingested via contaminated food and water polluted by agricultural runoff; direct exposure occurs when working with pesticides and home-use chemicals.

It is widely accepted that pesticide poisoning can lead to acute adverse health effects such as headaches, dizziness, nausea, and vomiting, skin and eye irritation, abdominal pain and muscle twitches. Severe poisoning and exposure over long-periods of time can lead to permanent damage. Research has pointed to a link between pesticides and cancers including breast cancer and leukemia, neurological damage, birth defects, and fetal death. According to the Pesticide Action Network, pesticides are now linked to a variety of diseases and conditions, including Parkinson’s disease and neurodevelopmental effects like autism and ADHD, with infants, children and agricultural workers being at greatest risk.

Legislation and Regulation

The EPA has primary responsibility for pesticide regulation with a stated goal of protecting the environment and human health. The EPA’s Office of Pesticide Programs manages most pesticide-related regulatory issues. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes the EPA to decide which pesticides are cleared for use in the United States and how they may be used. Other state and federal agencies join the EPA in pesticide evaluation, the training of individuals applying pesticide, the enforcement of regulations, and the temporary approval of new pesticides when warranted. Established pesticides are also periodically reviewed for safety.

In 1996, Congress amended FIFRA and the Federal Food Drug and Cosmetic Act (FFDCA) by enacting the Food Quality Protection Act (FQPA) to address the setting of tolerance limits for pesticides.

The FQPA required that EPA:
• set tolerances with reference to the pesticide’s safety, for example, that the product can be used with a reasonable certainty of no harm; and
• reassess over a 10-year period all pesticide tolerance standards that were in force when the FQPA was signed -- which led to the EPA revoking or altering nearly 4,000 tolerances; and
• include consideration of the “special susceptibility of children to pesticides” by applying an additional ten-fold safety factor when setting new tolerances; and
• account for the effects of cumulative exposure to pesticides that share a common mechanism of toxicity.

The FQPA also required EPA to expedite the approval of “reduced risk” pesticides, give special consideration to minor uses of pesticides and to antimicrobial pesticide products, create a list of pests of significant public health importance and screen pesticides for endocrine system disruption. The FQPA required that once every 15 years each pesticide registration be reviewed for compliance with FIFRA standards and for continued use as a safe pesticide in light of scientific changes and practices.

Liability and Insurance

Because the possible harmful effects of pesticide exposure are widespread, liability issues also cover a broad spectrum. Liability can include breach of product liability law, negligence, violation of certain federal or state laws, property damage and reckless endangerment. Defendants can include chemical companies, farms and workplaces that use pesticides, and government agencies. General liability policies typically do not protect against pesticide-based liabilities unless a specific clause covering pollution is included in the general policy.

Litigation

Due to the ubiquitous nature of pesticides and the possible dire adverse health effects, litigation is inevitable. Pesticide cases, however, may prove harder for plaintiffs to win than other product liability litigations. For example, a plaintiff must identify the specific chemical that caused injury --- which can prove to be difficult if the plaintiff was exposed to multiple pesticides or other chemicals. The plaintiff must also demonstrate the link between the specific chemical complained of and the adverse health effects. This can also be challenging because serious health issues such as cancer can have multiple possible causes. In addition, the effects of long-term exposure to pesticides may not manifest until years after the exposure occurred.

Companies can become involved in large-scale pesticide-related litigation. In 2005, Texas peanut farmers filed a class-action suit which was eventually heard in the U.S. Supreme Court against pesticide manufacturer Dow Agrosciences LLC. The farmers alleged that the company’s “Strongarm” pesticide product damaged that year’s peanut crop. The farmers claimed that the labeling on Strongarm suggested it was safe for use in peanut-growing areas even though the company knew or should have known that the pesticide stunted the growth of the peanuts in the soil. Dow Agrosciences responded that FIFRA pre-empted any claims but the Court rejected that argument, holding that labelling laws in states that were consistent or parallel with federal laws were not pre-empted by FIFRA. (Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005)).

Special-interest groups may join forces in pesticide litigation to achieve a common goal. In 2015, several beekeepers, trade associations and related organizations petitioned for review of an EPA order that allowed the sale of insecticides containing the ingredient sulfoxaflor. The group argued that sulfoxaflor killed honey bees, along with harming bee colonies and disrupting the pollination process. The manufacturer of sulfoxaflor, Dow Agrosciences LLC, intervened in the petition. The petitioners alleged that the EPA did not properly analyze Dow Agroscience’s sulfoxaflor before granting it approval. In 2015, the U.S. Court of Appeals for the 9th Circuit found that the EPA’s regulators had erred in approving the herbicide and allowing it to go to market. The appellate panel vacated the EPA’s unconditional registration “because given the precariousness of bee populations, leaving the EPA’s registration of sulfoxaflor in place risked more potential environmental harm than vacating it”. (Pollinator Stewardship Council et al. v. U.S. Environmental Protection Agency, 806 F.3d 520, 532 (9th Cir. 2015)).

Future Outlook

Pesticide use continues to expand today as scientists engage in research about causal relationships between pesticide exposure and adverse health effects. These studies, however, take a long time, particularly because they analyze effects that can appear significantly later than the original exposure.

There is growing concern over the environmental persistence of pesticide chemicals. Many pesticides are now considered to be persistent organic pollutants, or “POPs.” Because these chemicals are not vulnerable to biodegradation, they stay in the environment for a long time. For insurance purposes, persistence is an important categorization because it may represent longer-term risks, whereas non-persistent pollutants are believed to mostly represent shorter term risks.

Controversy over pesticides is likely to intensify as the EPA officials, under the current administration, seek to roll back existing protections. For example, the EPA has recently decided to change how it establishes the chemical safety and health risks of most substances in most cases by excluding from its calculations potential exposure related the presence of the chemical in the water, ground or air. The EPA will instead focus on the potential harm resulting from direct contact with the chemical. Improper disposal of chemicals is less likely to factor into a ruling about restricting the use of the chemical.

In the News

2023

• Plaintiff attorneys use defense witness email written in 2003 to portray Roundup as carcinogen - John Sammon, St. Louis Record (05/22/2023)
  In the trial of a woman claiming weed killer Roundup caused her cancer, attorneys for plaintiff Sharlean Gordon used a 20-year old email written by defense witness Donna Farmer to portray the expert as misleading.
• Michigan AG says landowners are liable for legacy farm pollution - Garret Ellison, M Live (04/07/2023)
  Owners of former Michigan farmland where pesticides were once used face increased responsibility for reducing people’s exposure to soil contaminated by toxic pollutants under a new attorney general opinion. In an April 4 opinion requested by state regulators, Michigan Attorney General Dana Nessel said state environmental law places a “due care” obligation on property owners whose land is polluted by historical pesticide use even though the contamination occurred before they bought it.

2021

• Dozens of Texas vineyards file suit against Bayer, BASF, allege widespread damage by weedkiller - Bryce Gray, The St. Louis Post-Dispatch (06/05/2021)
  A group of nearly 60 Texas vineyards filed suit Friday against agribusiness companies Bayer and BASF, alleging that their controversial weedkiller dicamba, used heavily in the state’s vast cotton fields, has damaged thousands of acres of wine grapes.
• US judge rejects future Roundup cancer suits deal - Glenn Chapman, Yahoo News (05/26/2021)
  A US judge on Wednesday rejected a deal to settle future Roundup cancer suits, saying it does more for weed-killer maker Bayer than for those who fall ill.

2019

• High-stakes trial starts in Roundup weed killer cancer claim - SUDHIN THANAWALA, AP (02/25/2019)
  A jury in federal court in San Francisco will decide whether Roundup weed killer caused a California man’s cancer in a trial starting Monday that plaintiffs’ attorneys say could help determine the fate of hundreds of similar lawsuits. . . . Edwin Hardeman, 70, is the second plaintiff to go to trial of thousands around the country who claim agribusiness giant Monsanto’s weed killer causes cancer. . . . Monsanto says studies have established that the active ingredient in Roundup, glyphosate, is safe. . . . “There is a mountain of evidence,” Hardeman’s attorney, Brent Wisner, said outside court. “This company needs to get straight and be honest with its customers and say, listen, there is evidence it’s associated with cancer and let people make a choice about whether or not they use the product.”. . . . A San Francisco jury in August awarded another man $289 million after determining Roundup caused his non-Hodgkin’s lymphoma. A judge later slashed the award to $78 million, and Monsanto has appealed.
• France takes Roundup weed-killer off market after court ruling - Euractiv.com (01/15/2019)
  French authorities on Tuesday (15 January) banned the sale of a form of controversial weed-killer Roundup following a court ruling that regulators failed to take safety concerns into account when clearing the widely used herbicide. . . . German chemicals and pharmaceuticals giant Bayer will seal a $63-billion merger with US-based Monsanto Thursday, creating an agrichemical juggernaut with lofty ambitions to feed the world but feared by environmentalists. . . . The French food and environmental safety agency ANSES said in a statement that sales of Roundup Pro 360 were banned as of Tuesday following a court ruling earlier in the day. . . . “As the ruling took effect immediately, market approval for Roundup Pro 360 has been cancelled,” ANSES said in a statement to AFP.
  “The sale, distribution and use of Roundup Pro 360 are forbidden as of today.” . . . An administrative tribunal in Lyon, southeast France, ruled that ANSES should have given more weight to potential safety risks when authorising the use of Roundup Pro 360 in March 2017.

2018

• Bayer Sags as Judge Finds Roundup Weed Killer Caused Cancer - Joel Rosenblatt, Bloomberg (10/22/2018)
  Bayer AG shares slumped after the German conglomerate failed to persuade a California state judge to set aside a jury’s verdict in the first trial over allegations that its Roundup weed killer causes cancer. . . . For Bayer, the ruling “is not good news,” said Thomas G. Rohback, a trial lawyer who isn’t involved in the Roundup litigation. “From Bayer’s perspective the bigger concern is it’s saying there was enough science to support the plaintiff’s case.” . . . . Jurors awarded $39.3 million to compensate former groundskeeper Dewayne Lee Johnson for his lost earnings and enjoyment of life. They also concluded that Monsanto Co., which Bayer acquired this year, should pay $250 million as punishment for hiding the dangers of the herbicide. . . . There are already another 8,700 plaintiffs arguing that the key ingredient in Roundup, glyphosate, causes cancer -- so extrapolating the level of the current award for all the cases points to a liability of about $680 billion, Ian Hilliker, an analyst at Jefferies LLC in London, wrote in a note to clients.
• AGs sue EPA over delay of requirement to protect farmworkers - MIRANDA GREEN, The Hill (05/30/2018)
  The attorneys general (AG) from three states are suing the Environmental Protection Agency (EPA) for failing to enforce a requirement meant in part to protect farmworkers from pesticides. . . . The AGs from Maryland, California and New York sued the Trump administration on Wednesday for indefinitely suspending an key requirement in the Agricultural Worker Protection Standard (WPS), which requires employers to give training to workers meant to protect them from pesticide poisoning. . . . The rule was updated under former President Obama in 2015 because the administration concluded that enhanced safety training for farmworkers and pesticide handlers would help reduce the amount and severity of pesticide exposure on the job. The Trump administration opted to suspend the rule last December.
• Landmark lawsuit claims Monsanto hid cancer danger of weedkiller for decades - Carey Gillam, The Guardian (05/22/2018)
  At the age of 46, DeWayne Johnson is not ready to die. But with cancer spread through most of his body, doctors say he probably has just months to live. Now Johnson, a husband and father of three in California, hopes to survive long enough to make Monsanto take the blame for his fate. . . . On 18 June, Johnson will become the first person to take the global seed and chemical company to trial on allegations that it has spent decades hiding the cancer-causing dangers of its popular Roundup herbicide products – and his case has just received a major boost. . . . Last week Judge Curtis Karnow issued an order clearing the way for jurors to consider not just scientific evidence related to what caused Johnson’s cancer, but allegations that Monsanto suppressed evidence of the risks of its weed killing products. Karnow ruled that the trial will proceed and a jury would be allowed to consider possible punitive damages

2017

• More restrictions announced for toxic pesticide - Geoffrey Mohan, LA Times (08/18/2017)
  

  California moved a step closer Friday to banning a widely used agricultural pesticide linked to birth defects, openly departing from the Trump administration’s decision to walk back an Obama-era effort to ban the chemical. . . . Growers and other users will be asked to increase the buffer zone between fields where they spray the pesticide and inhabited areas such as homes and schools, the state Environmental Protection Agency announced Friday. . . . The agency will proceed with plans to list the chemical, chlorpyrifos, as a known hazard to humans, under Proposition 65. The agency also updated its scientific assessment of the chemical, which has been linked to birth defects and reproductive maladies.

• Three companies not liable for boy's birth defects, jurors in pesticides case find - Kathleen Wilson, The Ventura County Star (06/27/2017)
  Jurors in a long-running birth defect trial found Tuesday that three companies were not liable for the birth defects suffered by an Oxnard boy whose mother claimed she was exposed to chemicals while working at a Ventura County berry farm.
• Insurer Says It Needn't Cover Farm Co. In Wasp Breeder's Suit - Ryan Boysen, Law 360 (05/23/2017)
  
  Colony Insurance Co. asked a California federal court on Monday to let it off the hook in defending a farming company from a $455,000 negligence suit for allegedly supplying pesticide-laden banana squash to a predatory wasp breeder that decimated its wasp population. Colony says Vantaggio Farming Corp.'s alleged application of pesticides to the banana squash doesn't constitute an "occurrence" under its commercial general liability policy. Colony is defending Vantaggio in a suit brought by Afourer Inc. for the time being but is asking for the court's blessing to wash its hands of the case. "There is no potential for coverage … under the Colony policy [because] the application of a pesticide to the banana squash delivered to Afourer does not constitute an 'occurrence' as defined in the insurance policy and as interpreted under California law," the complaint said. Colony does not say specifically why it doesn't believe the application of pesticides to squash doesn't constitute an occurrence, however.

2016

• Court's rejection of a lawsuit over pesticides in seed coatings is a setback to beekeepers - Geoffrey Mohan, Los Angeles Times (11/22/2016)
  A federal court on Tuesday dealt a setback to efforts by beekeepers and consumer groups to force the U.S. Environmental Protection Agency to regulate insecticide coatings on crop seeds. The U.S. District Court for the Northern District of California said it was well within the discretion of the federal agency to exclude chemical-coated seeds from pesticide rules that already cover the compounds in their other uses.
• Group Says It Has Sued Dow Over Pesticide Used in California - Scott Smith, ABC News (09/20/2016)
  Chemical manufacturing giant Dow fails to warn people in farming communities throughout California when a potentially dangerous pesticide is applied to nearby fields, health advocates claimed in a lawsuit filed Tuesday. Telone is among the most commonly used pesticides in California — applied to strawberry fields, almond orchards, vineyards and other crops. The chemical kills pests in the soil and dissipates before crops are planted, so health advocates say harmful residue is not found in food. Rather, they say the fumes released when it is first applied can potentially cause health issues. The U.S. Environmental Protection Agency says the chemical can cause cancer when inhaled over long periods.
• Pesticide mixtures may increase health risks but are still unregulated by California, UCLA report says - Kathy Wyer, UCLA Newsroom (02/17/2016)
  A UCLA study has found that the state agency responsible for protecting Californians from the dangers of pesticides is failing to assess the health risks likely posed by pesticide mixtures, which are believed to be more harmful than individual pesticides.

2015

• Pesticides Linked to Honeybee Deaths Pose More Risks, European Group Says - David Jolly, New York Times (04/08/2015)
  An influential European scientific body said on Wednesday that a group of pesticides believed to contribute to mass deaths of honeybees  is probably more damaging to ecosystems than previously thought and questioned whether the substances had a place in sustainable agriculture.
• Health Agency Says Widely Used Herbicide Likely Carcinogenic - Jacob Bunge, Wall Street Journal (03/20/2015)
  Glyphosate, a herbicide widely marketed by Monsanto Co. and other companies, likely has the potential to cause cancer in humans, a World Health Organization agency said Friday.
• DuPont Workers Exposed to Potentially Lethal Chemical for Years, Records Show - Lise Olsen, Houston Chronicle (01/14/2015)
  DuPont reported regular malfunctions with a multimillion-dollar exhaust and ventilation system inside its La Porte pesticide plant that exposed workers to potentially dangerous fumes for years before a catastrophic release killed four there on Nov. 15, public records obtained by the Houston Chronicle reveal.

2014

• Study of Organic Crops Finds Fewer Pesticides and More Antioxidants - Kenneth Chang, New York Times (07/11/2014)
  Adding fuel to the debates over the merits of organic food, a comprehensive review of earlier studies found substantially higher levels of antioxidants and lower levels of pesticides in organic fruits, vegetables and grains compared with conventionally grown produce.
• Spider venom, protein pesticide could stave off 'beemageddon' - RT (06/07/2014)
  Researchers in the United Kingdom hope that a new pesticide they have developed using spider venom and plant protein will help curb the demise of the honeybee population, thereby staving off catastrophe for global agriculture and food production.
• Pesticides are everywhere, and more dangerous than you realize - Shruti Ravindran, The Verge (02/19/2014)
  Most of us think we're protecting ourselves from noxious chemicals with half-superstitious gestures: filtering the water we drink a pitcher at a time, or confining ourselves to the organic aisles of supermarkets. But we forget that aside from the frightening array of incidental toxins we take in every day, there's a class of intentionally harmful chemicals we're constantly exposed to: insecticides.
• Pesticides may be more dangerous than testing reveals, study finds - Mesnage, R, N Defarge, J Spiroux de Vendômois, and G-E Séralini, BioMed Research International 201 (02/11/2014)
  Testing of pesticides focuses on the active ingredient. But many other "inert" ingredients are added to the pesticide formulation that is actually sold. A new study suggests that these additives can make pesticides more dangerous to cells than current safety testing reveals.
  
• The Pesticide on Your Fruit May Lead to Parkinson’s - Alexandra Sifferlin, TIME (02/03/2014)
  Following a study that showed that the banned chemical DDT was linked to a higher risk of developing Alzheimer’s disease, new research out this week shows that pesticides are associated with the development of Parkinson’s disease.

2013

• The Pesticide Connection - Lauren K. Wolf, C&EN (11/25/2013)
  The rats in a room at the University of Pittsburgh regularly get hit with doses of pesticide. But the researchers in J. Timothy Greenamyre’s lab don’t expose the rodents because of an infestation problem. They give the neurotoxin to the animals to learn more about Parkinson’s disease.

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