A new trend is emerging among corporations to seek immunity from prosecution and prevent consumers from suing after the corporation’s product injures a consumer. As an example, Bayer/Monsanto1 is currently seeking legislative protections for injuries from Roundup. If Bayer succeeds in obtaining this type of legal protection, consumers could no longer sue for injuries related to this pesticide.
What is Corporate Immunity?
Black’s Law defines corporate immunity as “a corporate officer’s immunity from personal liability for a tortious act committed while acting in good faith and within the course of corporate duties.”2 However, this is not the type of immunity that corporations currently seek. Instead, corporations are asking for legislative protections to prevent individuals from suing the corporation (not the corporate officers) when injured by the corporation’s product—a definition not provided in Black’s Law Dictionary.
Example of Corporate Immunity
Corporate immunity is rare but not unprecedented. For example, in February 2020, the Health and Human Services secretary invoked the Public Readiness and Emergency Preparedness Act of 2005 (PREP ACT),3 which allows the HHS secretary to provide legal protection to companies making or distributing critical medical supplies, such as vaccines and treatments, unless there is “willful misconduct” by the company.4 As a result, COVID-19 vaccine manufacturers could not be sued if someone was injured by a COVID-19 vaccine. However, this restriction was limited in scope and time to the COVID pandemic and COVID vaccines approved for emergency use.
The Slippery Slope
Some corporations now pursue legislative immunity from prosecution. An example is Bayer and Monsanto, the manufacturers of the pesticide Roundup. In October 2016, a multidistrict litigation (MDL) was formed for plaintiffs alleging that glyphosate, the active ingredient in Roundup, caused their non-Hodgkin’s lymphoma and that the Roundup label failed to warn of this side effect.5 Bayer vigorously disagrees, and after at least eight years of litigation, including many trials, Bayer is now lobbying for corporate immunity at both the state and federal levels.
Bayer does not seek immunity for a limited period. Instead, Bayer wants blanket immunity to essentially end the Roundup litigation against them. In April 2024, it was reported that nearly identical bills were introduced at the state level in Iowa, Missouri, and Idaho.6 Further, Bayer reports on its website that it is “engaging with policymakers to achieve legislative certainty around the force of labeling regulations in the U.S. Federal and state governments.”7
Success could certainly become a slippery slope. If Bayer can achieve “legislative certainty” through laws granting it corporate immunity and preventing those injured by its product from suing for their injury, then who’s to say other corporations will not seek the same protections? Surely, every corporation would prefer “legislative certainty” and to make more money rather than be responsible for the contents of its product labels. On the other side of the coin, injured plaintiffs also expect to be compensated when harmed by a corporation’s product.
1 Bayer closes Monsanto acquisition, June 7, 2018 (https://www.bayer.com/media/en-us/bayer-closes-monsanto-acquisition/) (last visited Dec. 2, 2024). Bayer acquired Monsanto in 2018. This article will refer to Bayer.
2 Black’s Law Dictionary (12th ed. 2024), available at Westlaw.
3 Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 (March 17, 2020).
4 You can’t sue Pfizer or Moderna if you have severe Covid vaccine side effects. The government likely won’t compensate you for damages either. CNBC, (Dec. 23, 2020), https://www.cnbc.com/2020/12/16/covid-vaccine-side-effects-compensation-lawsuit.html (last visited Dec. 2, 2024).
5 In re: Roundup Product Liability Litigation, 16-MD-2741. (Court website https://cand.uscourts.gov/judges/chhabria-vince-vc/in-re-roundup-products-liability-litigation-mdl-no-2741/).
6 Bayer seeks legal shield from suits claiming Roundup causes cancer. CBS NEWS, (April 16, 2024), https://www.cbsnews.com/news/bayer-roundup-legislation-shield-cancer/ (last visited Dec. 2, 2024).
7 Managing the Roundup Litigation. BAYER GLOBAL, https://www.bayer.com/en/managing-the-roundup-litigation (last visited Dec. 2, 2024).
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