I. Introduction
On 22 October 1999, in the remote village of Taucamarca in the windswept Andean highlands of Peru, half of the village’s 48 children died after they consumed a powdered milk substitute contaminated by methyl parathion, an extremely toxic organophosphate pesticide (see Fig. 1).
Figure 1. Parents of the poisoned children at the village graveyard. (Source: Erika Rosenthal)
The children died a gruesome death, many in the arms of parents as they were carried down the mountain to the nearest health post. Eighteen other children were poisoned but survived.
The police report, corroborated by the Peruvian human rights ombudsman and the press, painted a clear picture of the tragedy. A village woman had mixed a capful of white pesticide powder into a bag of the milk substitute which was served as part of the school lunch, and placed it by her doorway hoping to sicken a dog who chased her chickens. The woman spoke only Quechua, not Spanish (the language on the pesticide label) and was illiterate. She had no idea of the extreme toxicity of the pesticide and did not understand that even a small amount could be lethal for humans.
A child walked by and picked up the familiar bag and took it to school where it was mixed with other bags, and subsequently consumed by the children. As the pesticide had no strong chemical odour, the contamination was not detected.
The pesticide was methyl parathion, which in the 1990s was imported, formulated and sold in Peru by Bayer S.A., a wholly owned subsidiary of the German chemical company. Although Bayer denied that methyl parathion was responsible for the poisonings, a Peruvian congressional investigative subcommittee report stated: ‘According to the police and judicial investigations after the mass poisoning … based on the medical samples analysed from the brain, kidney, liver and stomach wall of the 24 children, the direct ingestion of the powdered milk substitute … mixed in an accidental manner with a potent lethal powdered pesticide, an organophosphate named methyl parathion known commercially as Folidol, was the cause of the 24 children’s deaths’.Footnote 1 The subcommittee found significant evidence of responsibility on the part of the agrochemical company Bayer and the Ministry of Agriculture, and recommended that the families be indemnified and that significant reforms be enacted to strengthen Peru’s pesticide control regulations.
II. Pesticide Poisonings – A Silent Killer
Methyl parathion is a Class 1a ‘extremely hazardous’ pesticide, according to the World Health Organization (WHO).Footnote 2 Nonetheless, in Peru, methyl parathion – a white powdered pesticide – was sold in one-kilogram plastic bags depicting vegetables with no pictogram to convey its acute danger to human health (see Fig. 2).
Figure 2. Bayer’s methyl parathion formula as sold in Peru at the time of the poisonings. (Source: Luis Gomero)
Peruvian regulations in force at the time required WHO Class 1a pesticides to be registered as restricted use products which could only be legally sold to a buyer with a ‘technical prescription’ from a licensed agronomist accredited by the Ministry of Agriculture.Footnote 3 However, post-registration enforcement was non-existent. According to the villagers, methyl parathion was freely available for sale without a technical prescription.
When questioned by the Congressional Investigative Committee, the department of the Peruvian Ministry of Agriculture responsible for pesticide regulation, SENASA, replied that it was impossible for them to guarantee regulatory control over the way these pesticides were sold and used. The congressional report concluded that SENASA did not carry out its mandate to enforce the country’s pesticide laws, allowing the free circulation of dangerous products and putting the health of farmers and the population in general at risk.Footnote 4
III. Blaming the Victim
Bayer consistently asserted in the press and in court documents that they bear no responsibility for the tragedy, because the company complied with the legal requirements and that they operated under a policy of ‘responsible care’. Bayer argued that the children’s deaths were not caused by the uncontrolled availability of an extremely hazardous pesticide in the countryside, but by the misuse of the product by the village woman, no matter how predictable, which absolved the company of any legal responsibility.Footnote 5
The great majority of pesticide poisonings globally occur in the developing South where a lack of education and illiteracy render the so-called ‘safe use’ of toxic pesticides virtually impossible.Footnote 6 In the years prior to the Taucamarca poisonings, the pesticide industry, including Bayer, had acknowledged the danger posed by pesticides categorized as 1a and 1b by the WHO. In 1989, Bayer was pressured to stop selling methyl parathion in Germany, yet it continued sales internationally. The high number of methyl parathion poisonings in Central America resulted in the Danish manufacturer Cheminova withdrawing its methyl parathion product from Nicaragua.Footnote 7
In 1997, the United States Environmental Protection Agency (EPA) put in place some of the strictest regulations ever applied to a pesticide in response to severe health incidents caused by methyl parathion. These included a requirement to add an odorant, or ‘stenching’ agent, to the pesticide in order to alert the user to its toxicity and to discourage home use. The EPA also required the use of tamper-resistant containers which required specialized equipment to use the product.Footnote 8 By 1999, most uses of methyl parathion were banned in the US.
The agrochemical industry wields significant political and economic influence in the developing South and runs well-funded campaigns to persuade governments that its products are economic necessities, that ‘safe use’ of extremely toxic pesticides is possible, and that poisonings are just unfortunate accidents.Footnote 9 The industry then uses the ‘safe use’ programmes as justification to claim that if farmers poison themselves or their children, they are to blame for their ‘misuse’.Footnote 10
Methyl parathion is the poster child for why ‘safe use’ programmes never worked – it accounted for about 40% of occupational poisonings in Latin America from the 1960s to the 1980s. It is lethal even in tiny doses. Yet Bayer was able to sell methyl parathion in Peru in clear plastic bags with no pictogram denoting its extreme toxicity and without an odorant.
Given that methyl parathion was banned or severely restricted in the north by 1999, and the rhetoric of the industry’s own safe use campaigns, it is safe to assume that Bayer was well aware of the public health risk posed by methyl parathion, especially under the socioeconomic conditions prevalent in the Andean highlands.Footnote 11 Even where a pesticide is registered as a restricted use product, the reality in the countryside, as admitted by the Peruvian Ministry of Agriculture, is virtually no control. Yet, Bayer has consistently claimed in court and the press that they are shielded from liability because they met the minimal government requirements for registration and bear no corporate responsibility.
IV. The Struggle for Justice
The Taucamarca families filed suit in civil court against Bayer and the Peruvian government in 2001, advancing two principal claims: (1) Bayer’s white powdered methyl parathion formulation was defectively designed and unreasonably dangerous given the lack of an odorant to alert an illiterate user to extreme toxicity, and (2) Bayer failed to adequately label the product. The families claimed that the Ministry of Agriculture failed to fulfil its legal responsibilities to control the sale of restricted use products.
The claimants argued that Bayer widely promoted its methyl parathion formulation throughout Peru, marketing it for use on Andean crops cultivated primarily by small-scale farmers.Footnote 12 The families sought compensation for the wrongful deaths and medical monitoring for the surviving children, and asked that WHO Class 1 pesticides be banned in Peru. Bayer has thus far evaded legal responsibility for the Taucamarca tragedy. In the years after the tragedy, the government appeared to try and thwart the investigation. For example, the samples collected and analysed by the Cuzco police were later sent to government laboratories in Lima. The government refused to release the results, even after repeated requests from the families’ lawyer, and then said the samples had been lost. The government then asserted that the powdered milk had been contaminated by a different pesticide, ethyl parathion, a liquid with an overpowering chemical odour. Ethyl parathion, also sold by Bayer, had been prohibited in Peru in 1996, thus limiting their liability. The claim was illogical, as no child would drink such a foul chemical and the teacher would certainly have noticed the odour.
There were other legal hurdles. The court of first instance rejected the families’ case on sham procedural grounds in 2001; it took five years to successfully appeal and reinstate the case. The families’ case has languished since then in Peru’s under-funded and often corrupt court system; there is still no decision.Footnote 13
V. Holding Corporations Responsible for Human Rights Abuses
In the wake of the poisonings, the Peruvian government bowed to overwhelming public pressure from doctors, Peruvian congress members and civil society, and banned methyl parathion in 2000.Footnote 14 Bayer, however, continues to deny responsibility, asserting that regulations on paper – even when it is widely known that the government neither has the will nor the resources to enforce them – shield them from liability. In these cases, where government and corporate actors are effectively complicit, what responsibility should the international community demand of corporations?
The Taucamarca families have remained steadfast in their determination to achieve a set of remedies that through stricter regulation of hazardous pesticides, reputational risk to the manufacturer and financial compensation, will make it less likely that agrochemical companies will market extremely hazardous products in Peru. This is the approach suggested by the UN Working Group on human rights and transnational corporations which posits that apologies, restitution, rehabilitation, compensation, sanctions and guarantees of non-repetition may be elements of a meaningful package of remedies to victims of rights abuses.Footnote 15 The report also underscores that addressing the lack of access to the courts for effective remedies is, in many developing countries, fundamental to providing effective remedies to business-related human rights abuses.Footnote 16
Yet as the experience in Taucamarca demonstrates, in countries with the most significant pesticide problems, poor governance and weak judiciaries can make holding corporations responsible a struggle that can last generations. That is what the corporations are banking on. A 2017 report to the Human Rights Council co-authored by the Special Rapporteurs on Toxics and on the Right to Food noted a number of mass poisonings, including Taucamarca, stating: ‘Pesticide poisonings remain a serious concern, especially in developing countries, even though these nations account for only 25 per cent of pesticide usage.’Footnote 17
To date, almost twenty years after the poisonings, the Peruvian court has yet to render a judgement on the case. The surviving children have received no medical monitoring, and the families have received no compensation. They fear no one will be held responsible for the deaths of their children and that the regulatory reforms necessary to prevent a repeat of their tragedy in other communities will never materialize. Until recently, the Peruvian government had made no move to ban other hazardous pesticides – even those that have caused mass poisonings.
Pesticide poisonings continue to be recorded with tragic regularity in Peru. In 2001, three children died and another 91 became sick when they consumed a school lunch contaminated with carbofuran in the town of Cajamarca.Footnote 18 In 2012, almost 400 workers at a commercial asparagus farm were poisoned by chlorpyrifos.Footnote 19 In 2018, 76 workers on a tomato farm were poisoned by malathion; in a separate incident 100 people were poisoned – and nine died – after consuming food contaminated with an organophosphate insecticide at a wake.Footnote 20 Because of the public outcry over the 2018 poisonings, the government began a process to consider banning the most highly toxic pesticides which are responsible for the most poisonings and deaths in the countryside. This is a hopeful step, but it is lamentable that the government stands up to corporate influence only after people are killed.
VI. The Families Fight On
‘Only with justice can our children rest in peace.’
– Victoriano Huarayo, father of two of the poisoned Taucamarca childrenThe repeated failure over decades to effectively enforce health and safety regulations in developing countries should lead to the removal of all WHO Class 1 pesticides from these markets. Yet the political power of the agrochemical industry, as illustrated by the Taucamarca case and others, has successfully delayed, or blocked outright, actions to remove these deadly poisons from developing country markets.
The courage of the Taucamarca families in pursuing the litigation is a testament to their determination that their children’s deaths have meaning. Working with local and global civil society advocates, they have successfully kept their fight on the national agenda for almost twenty years (see Fig. 3). They seek justice for their children and for all children. Their demand is simple. They want agrochemical companies to stop selling extremely hazardous pesticides in countries where their use is destined to result in tragedies. They want no other community to suffer as they have.
Figure 3. Tauccamarca families demonstrating in Lima. (Source: Erika Rosenthal)
