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KEYCODE BAYER #75

January 2003

Peru: Bayer Moves to Block Families' Legal Action

Lima, Peru - Three years after twenty-four children in the Andean village of Tauccamarca were poisoned and killed when they drank a powdered milk substitute that had been contaminated by an organophosphate pesticide sold by Bayer, the agrochemical giant moved to have the families' lawsuit dismissed on sham procedural grounds. The families filed a legal action in 2001 against Bayer, the principle Peruvian importer and distributor of the pesticide methyl parathion, and the Ministry of Agriculture. The suit seeks justice for the children that perished, medical monitoring for the children that were poisoned and survived, and regulatory reforms to prevent future tragedies.

Bayer's procedural claims are a shameful attempt to prevent the first case to question whether or not highly toxic pesticides can be sold and used safely in Peru from ever being heard by the court. They are also incorrect.

At a hearing in Lima in January, half a dozen attorneys for Bayer and the Ministry asserted that the families' case should be dismissed because the defendants were notified several days past the two-year statute of limitations, and because the families' legal documents are "confusing," since they reference two Bayer organophosphate pesticides, methyl parathion and ethyl parathion.

A straight-forward reading of Peruvian legislation shows that Bayer's claims are wrong. Peru's Civil Code clearly states that the two-year statute of limitations is suspended if it is "impossible" for the plaintiff to bring the action. When the children were poisoned on October 22, 1999, the dictatorial Fujimori government threatened the villagers telling them not to talk to environmental organizations or bring legal actions. The government also refused to respond to requests for information seeking the results of laboratory analyses conducted on the milk and the deceased children. Only in August 2001, after Fujimori fled the country and a new government was installed, did the families receive a response from the government allowing them to proceed with legal action.

Bayer's charge that the families' action is "confusing," because it references both methyl parathion and ethyl parathion, two distinct pesticides that it sold in Peru, is equally cynical. Reports from different Peruvian government agencies were themselves contradictory. Police and press reports stated that a "white powdered" organophosphate pesticide - which describes methyl parathion - had been mixed into the school's powdered milk. Then-president Fujimori asserted that it was ethyl parathion, a liquid pesticide, that contaminated the milk. Bayer has registered both ethyl and methyl parathion for sale in Peru. The families' legal action responsibly argued both possibilities, although witness reports at the time of the poisonings indicated that the lethal pesticide was the white powdered methyl parathion.

Bayer Peru, a wholly owned subsidiary of the German company, widely promoted its methyl parathion formulation known as "Folidol" throughout Peru, targeting its marketing on use in Andean crops cultivated primarily by small farmers, the great majority of whom speak Quechua only and are illiterate. Bayer packaged Folidol, a white powder that resembles powdered milk and has no strong chemical odor, in small plastic bags, labeled in Spanish and displaying a picture of vegetables. The World Health Organization classifies methyl parathion as an extremely hazardous pesticide.

The Tauccamarca families believe that Bayer should have taken steps to prevent the foreseeable misuse of this extremely toxic product given the well known socioeconomic conditions in the Peruvian countryside that make so-called "safe use" virtually impossible. Because Bayer took no reasonable steps to warn or protect users - for illiterate users the labeling and packaging provide no indication of the danger of the product - it didn't exercise reasonable care to prevent the foreseeable misuse of this deadly pesticide.

A Peruvian Congressional Subcommittee concluded in 2002 that there is significant evidence of administrative and criminal responsibility on the part of Ministry of Agriculture, and of criminal responsibility on the part of the agrochemical company Bayer. The report recommends that the government and Bayer indemnify the families of the dead children. It also names the Ministry of Agriculture for failure to enforce pesticide regulations. By the Ministry's own admission, uncontrolled sales of "restricted use" pesticides including methyl parathion are common throughout Peru.

A spokesperson for the families, Victoriano Huarayo, emphasized that they hoped their legal action would send a message to the pesticide companies so that they would stop selling these deadly products in the Peru. To date the surviving children have received no medical monitoring from either Bayer or the Peruvian government. The families have received no assistance, compensation, or even an apology from the company or the government.

Judge Dina Dávila Marín will decide whether or not to let the case proceed in the next few weeks. The families are asking that letters of support for their right to face Bayer in court be sent to Señor Luis Solari, President of the Counsel of Ministers, and to the First Lady of Peru, Eliane Karp, wife of President Toledo.

Luis Solari, President of the Council of Ministers
E-mail: lsolari@pcm.gob.pe , Fax: 511-444-9168
First Lady of Peru, Eliane Karp, Fax. 511-3114720,

For more information please contact the Pesticide Action Network-Latin America:
Erika Rosenthal; telephone (1) (510) 550-6752; erosenthal@earthjustice.org
Luis Gomero; telefax (511) 337-5170 or 425-7955; raaaper@terra.com.pe