Agriculture lobby convinces Kansas House to approve bill aimed at influencing pesticide lawsuits

Rep. Tobias Schlingensiepen, a Topeka Democrat on the House Agriculture and Natural Resources Committee, says he is perplexed a poorly understood bill was sent to the full House that critics say will make it more difficult for plaintiffs to pursue lawsuits alleging agriculture chemical companies were liable for not disclosing health risks. (Photo by Sherman Smith/Kansas Reflector)

TOPEKA — The Kansas House approved a bill Thursday that supporters viewed as a welcome barrier against regulatory overreach into pesticide application on farms and that was characterized by opponents as a vehicle to shield chemical companies from lawsuits filed by people made ill by pesticide exposure.

The Republican-dominated House voted 81-36 to forward to the Senate the bill endorsed by a collection of Kansas agriculture lobbying organizations. Under House Bill 2476, Kansas law would say pesticides sold in the state with warning labels approved by the U.S. Environmental Protection Agency would “fully” satisfy health and safety requirements that might be relevant when dealing with liability claims against manufacturers.

Rep. Tim Johnson, a Basehor Republican who once raised chickens and referenced his grandmother’s advice for handling manure, said farmers and ranchers were better off without government intrusion into their operations.

“This is a pretty simple bill. We don’t need the government helping. We really don’t on this,” said Johnson, who placed his trust in boots-on-the-ground practitioners. “They’ve been doing this a long time. They’ve lived it.”

Rep. Ken Rahjes, a Republican from the town of Agra, said that as chairman of the House Agriculture and Natural Resources Committee he would never push through a bill that hurt Kansans.

“This bill is good for agriculture. This bill is good for the state economy,” said Rahjes, who is running for Kansas secretary of state. “You can still sue, if you want. Don’t let the rhetoric get in the way of a good bill.”

Indeed, Modern Ag Alliance applauded the House vote. The lobbying organization pushing state legislation helpful to the chemical industry was founded by Bayer, which bought Monsanto for $63 billion in 2018. Monsanto and Bayer have faced an avalanche of lawsuits involving claims Roundup, which contains glyphosate, caused cancer and the product’s owner failed to warn users of risks. These lawsuits have cost the company billions of dollars.

Rep. John Carmichael, D-Wichita, said the bill had nothing to do with chicken waste and everything to do how a court assigned responsibility for marketing deadly poisons without full disclosure of potential health risks to crop producers and cattle ranchers. The bill was about chemical company lawyers dodging duty-to-inform claims, he said.

“What this is is protectionist legislation for the chemical industry,” Carmichael said. “It’s not about protecting the farmer. It’s about eliminating redress for the farmer when the chemical company fails to warn about things it knows.”

Democratic Rep. Dan Osman of Overland Park piled on: “What it is saying is, if your constituents, your loved ones, if you get cancer because of a product and they knew about it, and they didn’t put it on the label, that’s okay. It’s part of Kansas law now.”

 

Committee confusion

Before advancing the bill Tuesday to the full House, Republicans and Democrats on the House agriculture committee expressed confusion about what precisely the bill could accomplish. The whiplash of testimony from 14 opponents and 11 advocates in a public hearing didn’t dissolve the analytical haze.

“I’ve tried for several days to figure out what this bill is all about,” said Rep. Tobias Schlingensiepen, a Topeka Democrat. “Obviously, there’s a lot of subtlety or we wouldn’t be having the kinds of questions we’re having. Why is this bill necessary now?”

Schlingensiepen proposed the committee table HB 2476, but the vote on that motion was 4-11 against placing it on a back burner.

Rep. Angel Roeser, R-Manhattan, said it was important the Legislature promptly declare Kansas abided by federal pesticide labeling standards for a range of products relied on to boost crop production or control weeds. She offered the successful motion to send the bill to the full House.

“It’s not a liability shield,” Roeser said. “I think people are using talking points to try and talk about an industry they’re not a part of. I think that’s wrong.”

Democratic Rep. Linda Featherston of Overland Park said there was no talking-point memo in front of her. She proposed an amendment, which was rejected by the committee, that would remove text supporters of the bill argued was essential to protecting economic interests of the agriculture industry.

Rep. Gary White, R-Ashland, said he didn’t appreciate Featherston’s idea. “I just don’t see this as a friendly amendment,” he said.

Republican Rep. Doug Blex of Independence said he received numerous emails about the bill and supported the measure despite writers sharing their “sky-is-falling” opinions.

Blex said he raised cattle and crops and probably used more farm chemicals on his no-till ground than he’d prefer. He said most producers understood fine print on pesticide labels, which might include information about potential harm to humans. As he scanned the House committee room at the Capitol, Blex said toxicity recommendations on labels were typically based on contact with a hypothetical 150-pound person.

“Most of those in this room are over that, so we can have a little more chemical than a lot of people, I think,” Blex said.

 

Rep. Doug Blex, R-Independence, says he supports a bill approved by the House House to establish firmer legal grounds for farm chemical companies to counter lawsuits filed by plaintiffs alleging pesticide warning labels didn’t fully disclose health risks. (Photo by Sherman Smith/Kansas Reflector)

‘Failure to warn’

Zack Pistora, a lobbyist with the Kansas Sierra Club, said during a Jan. 21 public hearing on HB 2476 that comparable bills had been introduced in at least 12 states. He said bipartisan opposition to the legislation existed in Missouri, Iowa, Idaho, Florida and North Carolina. He urged the Kansas House committee to reject the bill.

“We are worried HB 2476 effectively shields pesticide companies from legal accountability, including personal injury lawsuits by offering legal immunity from any harm pesticides might cause to people or the environment,” Pistora said. “HB 2476 seems more about giving mega-chemical corporations a pass from facing case-by-case judicial assessments of inadequate warning labels and serious injuries that have resulted in millions of dollars in compensation and billions in settlements caused by harmful pesticides.”

Callie Jill Denton, executive director of the Kansas Trial Lawyers Association, said the bill was drafted to eliminate state rights and remedies for Kansans exposed to pesticides in a farm field, backyard garden or anywhere else. She said the bill was apparently aimed at advancing liability interests of Bayer, the German company, and ChemChina, which was controlled by the Communist government in China.

She said the Legislature should shelve the bill until the U.S. Supreme Court issued an opinion later this year in Monsanto v. Durnell, a case examining whether states could impose laws on warning labels more restrictive than a label approved by the U.S. Environmental Protection Agency.

Such cases fell into a category of “failure-to-warn” lawsuits, which was exemplified by the Missouri verdict in October 2023 awarding $1.2 million in damages to John Durnell. He contracted non-Hodgkin’s lymphoma, alleged it was due to significant exposure to Roundup and successfully agued Monsanto was liable for failing to warn customers on an EPA-endorsed label of the product’s potential health risks.

In that case, Bayer-owned Monsanto claimed the EPA concluded glyphosate wasn’t “likely to be carcinogenic” and the product didn’t require a cancer warning label. Monsanto attorneys argued federal law forbid state courts from punishing the company for following an EPA standard. Under HB 2476, Kansas statute would say Kansas accepted EPA’s standards regarding chemical warning labels.

“The impact of HB 2476 on Kansans’ rights under state law is significant,” Denton said. “Legislative action on HB 2476 should be delayed pending a decision in the Monsanto case. If the court rules in favor of Monsanto, HB 2476 will be moot.”

Tom Buller, executive director of the Kansas Rural Center, said the half-page bill would have a profoundly wide effect if placed in statute.

“This bill would give immunity to over 57,000 pesticides registered by the EPA for impacts they would have that are not listed on the label,” he said. “This bill provides immunity for every harm — cancer, Parkinson’s, birth defects — caused by any of the pesticides registered by the EPA.”

 

Inhibiting lawsuits

Randy Stookey, a lobbyist with the Kansas Grain and Feed Association and the Kansas Agribusiness Retailers Association, said adoption of the bill would reinforce a 1994 Kansas Supreme Court decision that dismissed a plaintiff’s claim a pesticide product label failed to provide adequate warnings for consumers.

The state court at that time affirmed in Jenkins v. Amchem Products that the supremacy clause of the U.S. Constitution prevented Kansas from usurping federal law on pesticide product labeling.

“Even so, lawsuits are being filed on claims that the pesticide product labels lack sufficient warning language,” Stookey said. “To clarify this issue in Kansas, and to protect farmers’ ability to continue using these critical products, House Bill 2476 proposes to codify the Jenkins decision by stating that any pesticide product bearing a U.S. EPA-approved label satisfies any statutory or common law duty to warn of potential risk.”

Aaron Popelka, an attorney with the Kansas Livestock Association, said the trade association’s 5,600 members wanted the Legislature to guarantee availability of pesticides and discourage lawsuits.

“KLA believes this legislation will help prevent frivolous failure to warn lawsuits where pesticide products are federally registered and bear a federally approved label,” he said. “This in turn will help keep pesticide products affordable and prevent premature removal of the products from the market.”