Bayer’s Quiet Campaign for Immunity Heads to State Legislatures

Bayer’s effort to find a cure for its Roundup litigation hangover is quietly crawling into State legislatures – specifically in the form of legislation that will give pesticide immunity to the company for its pesticide products. In at least three States, Bayer’s lobbyists have ushered in Bills that would provide immunity from State law claims and eliminate lawsuits, particularly those involving product labeling:

• ​Idaho SB 1245​
• ​Missouri SB 1416​
• ​Iowa HSB 646 and SBS 3188​

The Bills in Idaho and Iowa are quite broad, reaching far beyond the cancer warnings at the center of the Roundup litigation to include health, safety, “or any other provision or doctrine of state law, including without limitation state tort law or relevant common law.” In other words, complete pesticide immunity from State law. Indeed, the text of the Iowa and Idaho Bills is identical, proving that the same entity wrote both Bills. It doesn’t take a rocket scientist (or a chemical engineer) to figure out who wrote these Bills.

While Bayer is selling these Bills as the answer to the Roundup cancer litigation, they are also Bayer’s bulletproof vest against their farmer-customers. Make no mistake – if these Bills are passed into law, they will be used against any and all farming-related claims a farmer might bring, such as crop damage or property damage. Anyone who believes otherwise must be ignorant of how the preemption defense has been used by the industry over the last three decades. This is also why support for these Bills by organizations such as Iowa Soybean Association and Iowa Corn Growers Association makes no sense. They are shooting themselves (and their members) in the foot by eliminating one of the only methods farmers have to protect themselves from pesticide crop damage.

Bills like these and the quiet infiltration of State legislatures are one of the ugly side effects of the Roundup litigation. If legislators and agricultural interest groups took the time to truly learn the EPA’s registration process for agricultural pesticides, these Bills should be dead on arrival. Even the EPA has admitted failing to fully comply with federal registration requirements for decades. The only thing these Bills accomplish is providing pesticide immunity to a small niche of product manufacturers – they definitely don’t protect consumers or the farmers that use these products, nor will they result in newer, safer, better pesticide products.

USDA’s Farmer Seed Liaison to Analyze Websites

USDA’s Agricultural Marketing Service (“AMS”) is taking new steps in enforcing the Federal Seed Act with the launch of a nationwide Website Monitoring Program focused on variety name compliance and brand usage. These new actions are part of the USDA’s Farmer Seed Liason Initiative, a program aimed at elevating “the voices of farmers, small- and mid-size seed companies, and independent plant breeders in policy and decision-making processes to improve competition, choice, and fairness in the seed marketplace.” According to a recent announcement, AMS regulatory specialists will conduct an in-depth review of websites and linked materials for compliance with the Act and determine enforcement responses using a risk-based approach. AMS has previewed a range of potential actions that could be taken, including:​

• No Action: No interstate shipment was involved or there was no FSA interstate violation.
• Warning: (Minor violations and technical violations): These violations include omitting the test date on the seed label, using common names instead of the correct kind name, using abbreviations for variety names, and using the brand in place of the variety name.
• Formal Charge: (Serious Violations): These violations include misrepresenting germination or purity information, misrepresenting noxious weed-seed content, misrepresenting the kind and/or variety name, and a history of repeated minor or technical violations.

Rubber Dandelions – The Promise and Challenge

Rubber dandelions (taraxacum kok-saghyz) stand out as one of the more interesting plants being looked at as an alternative crop. Researchers at Ohio State University are studying rubber dandelions as a potentially abundant source of natural rubber which remains a key component in all manner of rubber products (tires, gloves, gaskets, etc.). Tire manufacturer Continental has even added resources to the crop and developed a tire made from dandelion rubber. Dandelions as an alternative crop have significant potential, particularly since the U.S. does not produce natural rubber – it is imported.

However, like almost every alternative crop, agricultural production of rubber dandelions faces formidable challenges – maybe even insurmountable. While dandelions could be grown in many regions, the U.S. agricultural infrastructure is set up to handle only a few predominate crops grown at scale (soybeans, corn, wheat, etc.). And more importantly, the choice between growing a crop that gets subsidized versus one that does not is typically not a choice at all. Domestic farm policy will likely have to change fairly dramatically if any alternative crop is to achieve success in the U.S. Nonetheless, it is easy to envision the potential for alternative crops like rubber dandelions to bring a re-ordering of the farm economy and put more power and autonomy back in the hands of producers. AP reporter Melina Walling put together a good report on the promise and challenge of alternative crops which you can read here.