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EPA shifts interpretation of law to limit lawsuits against pesticide makers

(Tuesday, Oct. 7, 2003 -- CropChoice news) -- John Heilprin, Associated Press: WASHINGTON The Bush administration is siding with the pesticide industry to make it harder for farmers to sue manufacturers over product labels.

In a change of interpretation, Environmental Protection Agency officials said Monday they believe federal law bars lawsuits against pesticide manufacturers under state laws when a product fails to do what its federally approved label promises.

"Crop damage lawsuits that impose label requirements that are different from the federal label requirements are pre-empted," agency officials said in a statement Monday.

The approach reverses a 1999 position taken by the Clinton administration in a California case, when the EPA said federal law did not prevent walnut farmers with crop damage from suing pesticide makers over labeling that did not warn of the risks of mixing chemicals.

The new position was foreshadowed in a confidential memo from EPA general counsel Robert Fabricant to the agency's acting No. 2 official, Stephen Johnson. It said the agency believes Congress meant for states to help regulate pesticide use but not to prescribe labeling requirements.

Fabricant said the agency's latest approach "should not prove to be a hardship to farmers," partly because EPA has extensive authority to ensure pesticides are effective.

It also is echoed in court papers filed in a Supreme Court case this year by Solicitor General Theodore Olson, who argued federal law bars Texas peanut farmers from suing pesticide makers for crop damage after using a mix the manufacturer recommended.

"This is a total change in the government position, a 180-degree change," said Tom Buis, a vice president for the National Farmers Union, which represents about 300,000 farm families. Buis said, Iit could be troubling because ... the farmers' liability isn't just what they spend on that pesticide but their entire crop."

Douglas Nelson, a spokesman for CropLife America, said his pesticide trade group, which pushed for the position change, believes that "at best the EPA is doing a clarification, not a new policy" to prevent someone from second-guessing what should be on a label.

Erik Olson, a senior attorney with Natural Resources Defense Council, an environmental group, said the policy change reflects "the pesticide industry getting its way with EPA."