Senate proposal would leave Kentuckians more vulnerable to pesticide harms | Opinion

Pending before the U.S. Supreme Court is the case of Monsanto Company v. John Durnell. John Durnell sued Monsanto after contracting non-Hodgkin lymphoma, a type of cancer, claiming that the company failed to adequately warn of the risks of cancer from the use of a glyphosate-containing product it manufactured.

After a state court jury awarded Durnell $1.25 million in damages on the failure-to-warn claim, and an appeals court affirmed the decision, Monsanto has asked the nation’s highest court to rule that the product label required by federal law preempts any state-law claims of a failure to warn. According to Monsanto, Durnell “is one of more than 100,000 plaintiffs across the country” who “seek to hold Monsanto liable for not warning users that glyphosate, the active ingredient in Roundup, causes cancer.” A Supreme Court decision is expected this year.

At issue in that case is whether the Federal Insecticide, Fungicide, and Rodenticide Act, under which pesticides are registered by EPA and must have an EPA-approved label, prevents an injured person from claiming that under state law the manufacturer failed to adequately and fully warn of risks from the use of the pesticide product.

While the Supreme Court is hearing the Monsanto case, pesticide advocates are working to push bills in a number of states including Kentucky, to shield pesticide manufacturers from similar failure-to-warn liability claims. Senate Bill 199 would deem an EPA-approved label for any registered pesticide product to fully satisfy the manufacturer’s duty to warn of potential harm and risks from product use, even if the warnings were not adequate or comprehensive. If passed, Kentucky would be only the third state in the nation to adopt such a restriction.

Why should you care?

First, because this bill applies to more than 57,000 currently active pesticide products registered with the Environmental Protection Agency. These registered pesticide products include agricultural pesticides used by the farmworkers in Kentucky, and a wide range of lawn and garden insecticides, herbicides, and household disinfectants and antimicrobial agents such as disinfecting wipes and sprays. And because pesticide exposure has been linked to elevated risks of numerous diseases, including Parkinson’s disease, leukemia, non-Hodgkin lymphoma and other cancers, thyroid disease, diabetes, kidney diseases, and rheumatoid arthritis, among other health issues. Evidence suggests that children are particularly susceptible to adverse effects from exposure to pesticides, including neurodevelopmental effects.

Kentucky law requires registration of commercial products containing pesticides. And there are 14,428 registered pesticide products listed in the 2026 Kentucky Department of Agriculture database, out of the larger universe of those registered with the EPA. And SB 199 would apply to them all, closing the door to any claim under state law that the product label information was not adequate warning of all foreseeable risks of use.

SB 199 would foreclose all lawsuit claims that the information on the EPA-approved label for any of these thousands of products wasn’t enough to fully warn consumers of the potential harms from normal use of the pesticide product.

Why is passing SB 199 such a bad idea?

Glad you asked.

First, Kentucky has a long history of passing bills that give an advantage to one party in pending lawsuits. Whether the labeling requirement under FIFRA preempts all state law claims of a failure-to-warn is pending in federal courts and the outcome will affect the rights of thousands of injured parties like John Durnell.

Kentucky legislators should not close the courthouse door to justice for Kentuckians injured by pesticides where labels do not fully or adequately warn the consumer of all risks. Instead, we should continue to allow the courts to decide the question of liability based on the facts of individual cases and the circumstances of the individual products.

There is a more fundamental issue, though, which is one of fairness and accountability.

If it were true all of the manufacturers of the 14,428 Kentucky-registered pesticide products have fully tested all of their products for short and long-term human health effects and have fully disclosed the evidence to EPA, and that the EPA-approved FIFRA label fully and fairly disclosed all of those known short-term and long-term health effects, then an argument might be made that the federal labeling should be the end of the state law duty to warn.

But it is not the case. As the Solicitor General noted in a brief filed in the case of Monsanto Company v. Hardeman, “neither FIFRA nor its implementing regulations, however, specifically address warnings for chronic health risks like carcinogenicity. No FIFRA provision nor EPA regulation either requires or precludes warnings about harm a pesticide may cause to human health through long-term exposure. And EPA does not typically use the registration process to address those harms by requiring chronic-risk warnings on a pesticide’s labeling.” So how then is it fair that the General Assembly would cut off claims of a failure to warn based on mere existence of a label that is not required to warn of those risks?

For those products that through normal use cause cancer, neurological damage, or other health harm, and where a manufacturer fails to fully test for or disclose that risk, injured Kentuckians deserve their day in court to show that the warning on the label did not fully inform and protect them. Yet SB 199 cuts off those claims, making a label that is not required to disclose chronic risks like cancer, the full extent of the manufacturer’s duty to warn.

And it gets worse. Under SB 199, the courthouse door would be closed to persons injured even if a manufacturer knowingly withholds, conceals, misrepresents, or destroys material information regarding the human health risks of such pesticide that are required to be disclosed in order to obtain or maintain approval of its label by the EPA — unless EPA first makes a determination that the manufacturer has engaged in that behavior. Yet EPA lacks the staffing and budget resources to police the manufacturers in all cases. And that might explain why the pesticide manufacturers are so keen to pass SB 199.

When someone is injured because the label warning did not clearly disclose known or potential risks of chronic diseases that might occur from a product’s routine use, shouldn’t that injured person have the right to convince a judge or jury that more should have been done to warn of the dangers? Or are we comfortable throwing those who are injured under the steamroller by limiting manufacturers’ obligations to warn to just meeting federal labeling standards that require disclosing only the acute exposure risks? Have we grown that callous or indifferent?

Access to the courts for injuries is essential, both to compensate the injured, and to spur the manufacturers to be more thorough in testing and more forthcoming in disclosing all the risks of using their products. And any liability limitations for pesticide manufacturers should be voided where a court or jury, and not a federal bureaucracy, finds that they knowingly failed to disclose, or withheld, or lied about the known potential for disease and illness from routine use of any of the 14,428 pesticide products sold in our commonwealth.

Bills like SB 199 are not pro-farmer. Nearly 90% of pesticides in the United States are used in agriculture, and farmworkers tend to have much higher levels of pesticides in their blood and urine—in some cases nearly 400 times greater than the national average. And those high exposures can unknowingly transfer to farmworkers’ children via household dust or even a hug after a long day at work. The EPA estimates that every year some 13,000 to 15,000 U.S. farmworkers fall ill due to pesticide exposure. And when accounting for undiagnosed workers, that number is likely higher.

SB 199 instead benefits pesticide manufacturers and protects corporate profits over public health. It will likely result in more injury and more illness from uninformed pesticide product use and avoidable exposure.

If the pesticide manufacturers want to reduce lawsuits based on a failure to warn, then the solution is simple. Do better. Do a better job of risk communication. Look at the detailed information provided by any prescription drug manufacturer about the use and precautions, the health effects, and the known and unknown consequences of chemicals that are marketed and prescribed to promote health. And then consider providing that same degree of transparency regarding the benefits and the potential harms from your consumer product; a product that is designed and intended to disrupt biological functions of target organisms and may have such effects on non-target organisms, including farmers and other consumers of pesticide products in our commonwealth.

Tom “Fitz” FitzGerald is the former director and currently of counsel to the Kentucky Resources Council, a non-profit Kentucky organization providing legal and technical assistance without charge on a range of environmental and energy issues affecting Kentuckians.