Generational Dynamics Forum - New Site

Op-Ed in THE HILL on Bayer and Big Ag's "Get Out of Jail Free" scheme. Lots of links. Great comparison to the vaccine liability shield. Wonderful discussion of this issue.

The game Monopoly was patented in 1904, updated in 1935. Unregulated monopolies and near-monopolies like Bayer are nothing new in America.

Almost 40 years ago, the federal government granted vaccine manufacturers immunity from people who might otherwise like to sue those companies for vaccine injuries. Now pesticide companies are trying to secure similar legal shields.

It’s easy to see why. After the National Childhood Vaccine Injury Act became law, the vaccine market began growing at a rapid clip and has never been the same since. More than 40 shots for double the amount of diseases have been added to the childhood vaccine schedule in the U.S. — more than in any other developed nation.

In 1986, the pharmaceutical lobby claimed drug companies needed a liability shield to make the market for vaccines viable. They invest many years and many millions of dollars on research and development for new vaccines and patents. Costly lawsuits signal to markets that the risks of a vaccine might outweigh the rewards. That could suppress demand, forcing companies to leave the vaccine market altogether. Such a departure, they argued, would harm public health.

In lieu of legal recourse, the bill established the National Vaccine Injury Compensation Program as an “alternative remedy to judicial action for specified vaccine-related injuries.”

Whatever its intentions, the compensation program has too often added insult to injury for victims of vaccine injury. Payouts are limited to $250,000 for “actual and projected pain and suffering and emotional distress,” but few ever receive that much. Reporting methodologies are shoddy, and those who have tried to receive compensation through the program say the meager payout — usually amounting to a few hundred dollars — isn’t worth the hassle and headache.

Experts estimate that only between 1 percent and 10 percent of cases are even recorded in the Vaccine Adverse Event Reporting System. Under Health and Human Services Secretary Robert F. Kennedy Jr., Make America Healthy Again advocates have called out the vaccine carve-out act for distorting incentives in the vaccine market. Amid growing public awareness, Rep. Paul Gosar (R-Ariz.) has filed a bill with 31 sponsors that would repeal it.

In their quest for similar liability shields, producers of agrichemical products — often known as Big Ag — know they can’t be as transparent as the pharma lobby was in 1986. So, they tried to sneak the provision into a house appropriations bill, with language that obscured the obvious. According to Meryl Nass, a former doctor and physician researcher, Section 453 of the Interior and Environment House Appropriations Bill “grants pesticide manufacturers de facto immunity from liability for injuries caused by exposure to their products, shielding them from accountability.”

Thanks to pushback from activists, including Nass, Section 453 was defeated in both the House and the Senate.

Big Ag has therefore shifted tactics, setting its sights instead on the new farm bill. According to sources inside the Agriculture Department, the same language for the immunity provision from 2024 is planned to be included in this year’s bill. Section 10204 would grant pesticide manufacturers de facto immunity and erect a liability shield for all chemicals regulated under the Federal Insecticide, Fungicide, and Rodenticide Act; Section 10205 would remove states’ power to create local regulations.

In addition, under the guise of the Modern Ag Alliance, chemical companies are working to pass liability shield laws at the state level. They have already succeeded in Georgia and North Dakota, and state efforts will likely continue in future legislative cycles. Their website claims that glyphosate-based pesticides are the “backbone of modern farming” and that lawsuits against the manufacturers of the products have been “scientifically unsound.”

However, several courts have disagreed. Three initial lawsuits against Monsanto (Johnson v. Monsanto, Hardeman v. Monsanto, and Pilliod et al. v. Monsanto) ruled in favor of the plaintiffs, to the tune of $289 million, $80 million and $2 billion, respectively.

Bayer has already spent a huge amount of money — almost $11 billion — to settle almost 100,000 lawsuits involving Roundup. The most recent judgment against Bayer, in Missouri for just over $600 million, brings the company’s total loss closer to $12 billion.

Shielding private companies from liability blunts the strong market incentives companies otherwise receive to make their products and services as safe as they can. If injured customers can sue them, any business, whether that be a restaurant or car manufacturer, has strong reasons to create products and services that do not endanger their customers. Successful lawsuits also send a signal to other potential customers: proceed with caution.

The agri-chemical industry prefers to operate under cover of opaque legalese. And while many niche public interest groups have caught on to their tricks and have been diligently ringing the alarm, it will take more than a few activists to win this fight. The chemical companies have been relentless in their pursuit to maintain legal protections despite the potential hazards to consumers, particularly American farmers, whose persistent exposure to agrichemical products puts them at great risk.

If the most recent liability shields succeed, safety incentives for powerful industries will collapse while injuries mount and taxpayers foot the bill for the fallout via increasing rates of chronic disease. Unless the public demands transparency and defeats these hidden immunity clauses once and for all, the next generation will inherit a government that fails to offer just recourse and a food system that poisons them.

Jennifer Galardi is senior policy analyst for restoring American wellness in the Heritage Foundation’s DeVos Center.