By Grace Vitaglione and Will Atwater
People dressed in green filled the seats at a North Carolina Senate committee hearing on May 14 — their clothes an act of protest against this year’s Senate version of the North Carolina Farm Act bill, a provision of which would limit liability for pesticide manufacturers.
Bill co-sponsor Sen. Brent Jackson (R-Autryville) said the provision would protect pesticide companies from frivolous lawsuits, but critics say the measure would place too high a burden on those seeking justice for being harmed by pesticides.
Depending on the chemical and level of exposure, pesticides can affect the nervous system, hormone and endocrine systems and cause cancer.
Environmental advocates say the German company Bayer, which makes the popular weed killer Roundup, is pushing similar legislation around the country to protect itself from litigation over alleged harms from Roundup.The weed killer contains glyphosate, which is classified by the International Agency for Research on Cancer as “probably carcinogenic” to humans.
The bill was taken off the Senate voting calendar on May 15, but Jackson said he expects it to be heard again soon.
Marie Mueller of Wake County was one of the meeting attendees. Dressed in green, she waited outside the committee room, which was at capacity, with her two children. Mueller said she is concerned about the harmful effects of pesticides on her children and she disagrees with hampering an individual’s ability to sue a company.
“This is an issue I take to heart,” she said. “I want my kids to be the healthiest they can be, and they are up against so much to be healthy. It’s sad.”
Potential impact on litigation
Pesticides are substances intended to destroy, repel, or mitigate pests, but the word is also often used as an umbrella term that includes herbicides, or weed killers, said Kendall Wimberley, policy manager at Toxic Free NC, an environmental advocacy nonprofit.
Section 19 of Senate Bill 639 would presume the label on a pesticide product is an adequate warning to consumers of the possible dangers. That label must be approved by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide and Rodenticide Act.
Roughly 16,000 chemicals would fall under that provision, according to a May 19 news release from Toxic Free NC.
Jackson said the provision would level the legal playing field, as some of the companies that make and sell pesticides will get “sued out of business” otherwise. The industry pushed for more far-reaching legislation, he said, but he considers this language fair.
Currently, a plaintiff can bring a lawsuit against a seller or manufacturer saying they weren’t properly warned of the dangers associated with a pesticide. If Senate Bill 639 were to become law, the plaintiff could still bring that suit, but it would be a lot harder to win, said Brooks Rainey Pearson, legislative counsel at the Southern Environmental Law Center, an environmental legal advocacy nonprofit.
“To say American citizens have to jump through hoops to prove that they were harmed in order to protect these giant foreign pesticide companies is offensive,” she said.
According to the bill, the plaintiff would need to show scientific evidence that doesn’t support the warning and that the manufacturer or seller knew or should have known that.
Sen. Ralph Hise (R-Spruce Pine) said during a committee meeting May 14 that plaintiffs should have to provide evidence of a claim, so this provision would be fair.
Rainey Pearson argued that even if a plaintiff who claims they contracted cancer or another chronic disease from a pesticide could come up with the appropriate scientific studies, the industry will have their own scientific studies to rebut them.
“You’re going to end up in a battle of scientific studies going up against a giant corporation that has way more litigation chops and money to spend on it than you probably do as a hypothetical cancer patient,” she said.
Many of the plaintiffs suing pesticide companies are farmers who were using Roundup and didn’t know that it might be associated with non-Hodgkin’s lymphoma or who used Paraquat without knowing that it might increase their likelihood of developing Parkinson’s disease, Wimberley said.
“It’s not that these are frivolous lawsuits. These are real people who have been harmed by the lack of clear information from these pesticide companies,” Wimberley said.
Years of exposure over time has also given the public and regulators a better understanding of the possible health harms from pesticides, Wimberley said.
The EPA can only refuse to register a pesticide if the risk to human health, wildlife and the environment outweighs the benefits to crop yield and quality.
Health effects of pesticides
Over 89,000 farmers and their spouses in Iowa and North Carolina have been involved in the Agricultural Health Study since 1993; the study is funded by the National Cancer Institute and the National Institute of Environmental Health Sciences. The study has found associations between using some pesticides and increased health risks. For example, study authors found that using some insecticides such as terbufos, toxaphene and parathion was associated with increased rates of ulcerative colitis and Crohn’s disease.
Overall, it’s hard to capture which specific pesticides are more harmful than others because there are so many on the market, said Modjulie Moore, a family physician and medical director for the state health department’s Farmworker Health Program. When seeing a patient who has overlapping symptoms or potential pesticide exposure, it’s a complex process to pinpoint which product caused the problem, she said.
Moore pointed to organophosphate poisoning, for example, which tends to have symptoms that can overlap with other diagnoses, such as dizziness, weakness, nausea, vomiting, confusion, headache and/or diarrhea.
There are often multiple active ingredients in a lot of the products that people use, and combinations of ingredients that can have unknown effects, Moore said.
While there is premarket testing on pesticides, there’s no testing on people, said Jane Hoppin, an environmental epidemiologist at NC State University. Most people don’t know what’s in the pesticide they use, such as ant poison, which makes studying health effects difficult, she said.
In general, insecticides — which kill insects — are more worrying than herbicides, or weed killers, Hoppin said. Organophosphate insecticides like chlorpyrifos have neurotoxicants. A 2012 NIH study found brain anomalies in children that were exposed to the chemical prenatally.
U.S. Department of Health and Human Services Secretary Robert F. Kennedy Jr. has criticized glyphosate, a chemical in Roundup, in the past. But he told farmers and Republican lawmakers May 20 that their business model won’t be jeopardized by his report on childhood chronic diseases.
Advocates say labels aren’t enough
Environmental advocates argue that the EPA labeling process is insufficient to warn consumers of the harms from exposure to pesticides.
The EPA doesn’t do its own studies and often gathers data that the industry gives them, Rainey Pearson argued. Some companies manipulate those studies, she alleged.
That means the labels aren’t always an adequate warning to consumers, Wimberley claimed.
The federal law governing the labels should be “the floor, not the ceiling of our pesticide regulation,” Wimberley said. Some pesticides that are on the market have been associated with harm to humans.
“It’s this disconnect between what the rest of the scientific community is seeing as potential harm and the things that EPA continues to approve,” Wimberley said.
Jackson said while he does not know the full EPA process, the regulators are thorough, and he “doesn’t buy that it’s a fast-track system.”
Manufacturers can only use the label approved by the EPA, but they still face lawsuits over the adequacy of the label, which is a “catch-22” for companies, said Mark Behrens, a lobbyist for the U.S. Chamber of Commerce, at a May 6 state Senate committee meeting.
Rainey Pearson said if that’s the case, manufacturers should push for a better labeling system at the EPA instead. The agency has often relied on companies to voluntarily manage themselves, she said.
A spokesperson for the EPA said in an email to NC Health News that all pesticides regulated by the EPA go through an extensive risk assessment process supported by “robust science,” including periodic re-evaluations to incorporate new information.
The label must meet a “strict legal standard” and is intended to direct how to use the product while minimizing risk, the spokesperson also said.
Safety for farm workers
There is a lot of pesticide use in North Carolina because of the crops the state grows, said NC State’s Hoppin. Tobacco, cotton and Christmas trees are all treated with more pesticides than crops that people eat.
Rules around when/how farm workers can treat a crop and how long they should wait after applying the pesticide before returning to the field are supposed to limit exposure, she said. Companies do have an interest in limiting the chemicals from spreading where they’re not supposed to be, as they’re expensive substances, she said.
“I’m not someone who believes that we need to get rid of all of them,” Hoppin said. “But we need to use things responsibly, and we need to use the minimum.”
Farm workers are also supposed to go through pesticide safety training, said the Farmworker Health Program’s Moore. Still, for workers who do get sick, it can be hard to pinpoint the cause when some farms have multiple crops that require different pesticide treatments, she said.
Labels on agricultural pesticide products have requirements specific to protecting farm workers, including appropriate personal protective equipment, field re-entry requirements and specialized training that might be needed, according to the EPA spokesperson. Employers must ensure that workers who handle pesticides have either read the labeling or were informed of the requirements.
Part of a national push
Wimberley said similar legislation was defeated in Iowa, Tennessee, Florida, Montana, Mississippi, Oklahoma and Idaho.
In Iowa, opponents coined the legislation “the cancer gag act,” Wimberley said.
Georgia and North Dakota did pass the legislation.
After the bill was pulled from the voting calendar on May 15, Jackson said members of the Republican caucus needed more time to learn about the issue to be comfortable voting. The bill is now in the Senate Rules Committee.
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