It’s off the record, on the QT, and very hush hush. Bayer AG wants no one to know, but the pesticide manufacturer is potentially just two votes away from the golden ticket it has wanted ever since acquiring Saint Louis based Monsanto in 2018.
A provision tucked deep in a spending bill to fund the Environmental Protection Agency and the Interior Department would effectively end lawsuits from plaintiffs claiming Bayer’s pesticide Roundup and its active ingredient glyphosate gave them cancer.
To date, Bayer has paid out roughly $11 billion in settlements to about 100,000 plaintiffs. At least 63,000 additional lawsuits are pending. Most of those cases are in state courts where the lawsuits typically allege Bayer’s Roundup labels fail to warn about potential cancer risks, referencing a 2015 International Agency for Research study that found glyphosate was “probably carcinogenic to humans.”
The Federal Insecticide, Fungicide, and Rodenticide Act prohibits the sale of any pesticide that is “misbranded.” Plaintiffs often successfully argue the lack of a cancer warning on the label amounts to FIFRA-defined misbranding.
Bayer has requested the Supreme Court take up whether that is indeed the case. But a Supreme Court win for Bayer could become moot if the pesticide giant has its way in Congress. The proposal follows Bayer’s intense lobbying of lawmakers.
“None of the funds made available by this or any other Act may be used to issue or adopt any guidance or any policy, take any regulatory action, or approve any labeling or change to such labeling that is inconsistent with or in any respect different from the conclusion of —
(a) a human health assessment performed pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.); or
(b) a carcinogenicity classification for a pesticide.”
On the face of it, the language appears innocuous and that’s how Bayer’s selling it. Bayer spokesperson Brian Leake insisted Section 453 is nothing more than routine business, “a normal part of Bayer’s political engagement.”
Meanwhile, Rep. Mike Simpson (R-ID) and chairman of the appropriations subcommittee that oversees environmental agencies, also downplayed Section 453 at a July hearing:
“The purpose of the language is to clarify existing law. The states cannot require a pesticide label that is different from the EPA’s label. The language ensures that we do not have a patchwork of state labeling requirements. It ensures that one state is not establishing the label for the rest of the states.”
In other words, move along. There’s nothing to see here.
Except there’s plenty to see.
Should Section 453 become law the only pesticide labels permitted by FIFRA must be based on a carcinogenicity classification or human health assessment. And since EPA does not classify glyphosate as a carcinogen, “misbranded” lawsuits would become mute.
And if EPA wanted to change the label, Section 453 would require the agency to conduct a new assessment on whether glyphosate is a carcinogen, a process that can take at a minimum four years and sometimes longer than a decade.
In the meantime, Bayer will argue it can’t disclose potential harms that are different from the EPA-approved label — a label that currently discloses no potential cancer harm from glyphosate. What an irony.
It’s insidious.
And dangerous because Section 453 not only would apply to glyphosate, but some 57,000 other active pesticide products. What if independent research discovered new evidence of a pesticide’s danger? Too bad. Section 453 ties EPA’s hands, preventing new immediate public label warnings.
Anti-pesticide groups are sounding alarms. And they should.
There’s likely little chance Section 453 survives Democrat scrutiny in the U.S. Senate. It might squeak by in the U.S. House. Bayer is reportedly twisting arms of lawmakers in farm belt states.
Bayer is desperate to put glyphosate lawsuits behind it. Here’s one sure fire way to get it done: Stop producing glyphosate based Roundup. Research and bring to market a pesticide alternative. And stop expecting Congress or the courts to clean up your ill-fated decision to buy Monsanto.
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