BANANAS!*

I was 21 years old, what did I know? Nobody told us anything. For two years, I applied Nemagon without mask, gloves or protecting clothing. You pump it directly into the ground. Sometimes, the pressure made the liquid splash right in your face. You could feel the hideous smell across 100 meters.
(Interview with banana plantation worker (1)

In the film BANANAS!*, twelve Nicaraguan banana plantation workers are suing Dole for concealing the dangers of a pesticide that they claim made them sterile.

The case is about Nemagon, one of many brand names for Dibromochloropropane (DBCP), a pesticide originally synthesized in 1955. It was used extensively all over the world until 1977, when employees who had handled the chemical at the Occidental Chemical plant in California were found to be sterile (2).

DBCP was used to protect many different crops: vegetables, nuts, fruits, beans and cotton. The target pest was nematodes, tiny worms living in the soil, feeding on the roots. The pesticide was either pumped directly into the ground, or sprayed into the air with irrigation guns (3).

In the 1960s, Standard Fruit (now Dole), Del Monte and United Fruit (now Chiquita) began to use Nemagon massively on Central American, Caribbean and Philippine banana plantations, as well as on sugar, pineapple and cotton plantations. Various chemical companies manufactured the pesticide: the Occidental Corporation, Dow Chemical and Shell Oil. Together, Dow and Shell exported as much as 24 million pounds of Nemagon each year during the 1970s until 1977 (4).

From 1977-1979, DBCP registrations were suspended by the Environmental Protection Agency (EPA) which stopped most applications except for use on pineapples in Hawaii. In 1985, the EPA canceled all registrations (5).

Even as early as 1961, an internal Shell report recommended using impermeable protective clothing to prevent contact with the skin, because the product could have undesirable consequences for human reproduction (2, 6).

DBCP interrupts the hormones that act as the body’s “chemical messengers”. This can increase cancer risk and affect the reproduction system. Studies in both animals and humans have found that DBCP can cause low sperm counts and infertility in men (7). Exposure to high levels have also shown to cause kidney and liver damage (5).

Most of the studies conducted so far have focused on males, and it is difficult to confirm DBCP as a carcinogen causing tumors, especially breast cancer. This is because it takes many years before cancer evolves, and it is difficult to isolate DBCP as single factor (7).

However, there are strong reasons to suspect DBCP is the reason for several cases of cancer. Among males who worked up to three years on plantations during the 70s, researchers found an increase of lung cancer cases by 40 percent. Among males who applied pesticides for a period longer than three years, the cases of brain cancer increased by 80 percent (1).

It was mainly men who worked in the fields and applied the chemical. However, women got exposed to DBCP in the packing plants or when they sometimes removed weed or washed the men’s clothes. Children got exposed when they entered the plantations to bring lunch boxes to their fathers (1).

In El Viejo and other villages in Nicaragua’s banana-growing province of Chinandega, where activists estimate 16,500 people were harmed and more than 1,000 died from exposure, DBCP goes under the name "Death’s Dew” (3).

References:

1. Jakten på den fullkomliga bananen ("The hunt for the perfect banana") – The Swedish Society for Nature Conservation (SSNC), 2004
2. Dibromochloropropane (DBCP): a review – National Center for Biotechnology Information (NCBI)
3. Nicaragua fights for ‘Death’s Dew’ compensation – Newsday.com
4. Victims of Nemagon Hit the Road – Envio.org
5. Dibromochloropropane – Toxipedia.org
6. Banana Workers Put Shell on Trial – Envio.org
7. Pesticides and Breast Cancer Risk: Dibromochloropropane (DBCP) – Cornell University (2007)

See also:
Article and photo gallery from Newsday.com

Other DBCP brand names

List source:
Pesticides and Breast Cancer Risk: Dibromochloropropane (DBCP) – Cornell University (2007)
Consumer Factsheet: Dibromochloropropane – EPA

At noon the 6th of March, the Go bananas for Fairtrade campaign was launched. Thousands of UK citizens participated in the world’s biggest banana-eating event. The task was to eat a Fairtrade banana before noon the following day.

Along with the campaign, the Fairtrade Foundation published a report explaining how Fairtrade bananas in just nine years have come to account for 25 % of all bananas sold in the UK.

The report unravels the trade patterns of the banana during the past 15 years. EU agreements in response to WTO rulings have been in favour for large scale banana plantations, making it difficult for small scale plantations in the Caribbean to survive at all. Combined with steep price drops and natural disasters, this have put 20.000 out of 25.000 farmers in the Windward Islands out of business since 1992. However, Fairtrade has provided a lifeline for many of the remaining farmers by offering a fair and stable minimum price along with “premiums”, a kind of tagged money aimed for social improvements in the local community. Fairtrade also encourage environmentally sound agricultural practices, which is both better and cheaper for small scale plantations in the long run.

Without the premium price we would not be farming still. Farmers here are getting prices that do not cover their costs. We, however, have been able to cut fertilizer use by half and have started using animal manure. We have stopped using herbicides and the groundcover between plants is attracting back the wildlife.
– Deris Ariza, Asoproban, Colombia

One of the most disturbing facts in the report tells about how banana price wars in Europe strike downwards to the bottom of the supply chain. In UK supermarkets, it is common to cut prices on staples as bread, milk and bananas as a way of winning the hearts of price-conscious costumers. If these products are cheap, the store as a whole is considered cheap. Therefore, bananas are often subject to extreme price drops. According to the report, the retail price of bananas in UK shops fell by 41 % between 2002 and 2007. Unless supermarkets absorb these price cuts within their own profit margins, any drop in retail prices inevitably gets passed down the supply chain. This is forcing farmers to sell bananas below the price of production, which of course prolongs the terrible wages and working conditions in producer countries all over the world.

So what is the action plan for the future? The report outlines several urgent issues for the Fairtrade movement:

• Keep buying Fairtrade bananas – only 100 % Fairtrade is good enough!
• Retailers and importers should make specific, long-term commitments with small-scale producers.
• The inclusion and respect for small farmers who respect high social and environmental standards must be ensured within the EU and WTO trade agreements.
• Plantation workers are beneficiaries of the Fairtrade model. To further strengthen their rights, the experience and methods of independent trade unions must be integrated into the Fairtrade movement.
• Retailers and supermarkets must recognize the vulnerable position of growers and workers and not to use bananas as weapons in their price wars unless they are bearing the costs themselves.
• An unregulated banana market tends toward overproduction and therefore unsustainably low prices for producers. Companies and governments need to establish a permanent international banana forum exploring new types of agreements that includes social and environmental chapters.

Download the full report:
Unpeeling the banana trade (PDF)
Compiled and written by Alistair Smith for the Fairtrade Foundation, February 2009

“Go bananas for Fairtrade” campaign website:
www.fairtrade.org.uk/gobananas

Note: this article will not be updated. Please see the News section or the article BANANAS!* under fire – a timeline for the latest developments.

Background
During the 1970s, the pesticide DBCP (Dibromochloropropane) was used extensively on banana plantations all over the world. DBCP, originally synthesized in 1955, had many brand names, such as Nemagon and Fumazone (read more about DBCP here).

DBCP was used to protect many different crops: vegetables, nuts, fruits, beans and cotton. The target pest was nematodes, tiny worms living in the soil, feeding on the roots. The pesticide was either pumped directly into the ground, or sprayed into the air with irrigation guns.1

In 1977, employees who had handled DBCP at the Occidental Chemical plant in California were found to be sterile. Within months, the Environmental Protection Agency (EPA) had suspended most uses of the chemical.2

In 1983, Sacramento attorney Duane Miller won a $4.9 million judgement against Dow on behalf of six of the Occidental plant workers. Two years later, the EPA permanently banned the use of DBCP in the United States.3

In March 1990, the Texas court announced they would allow cases with a foreign location as place of incident. This was not possible before due to a legal doctrine called “forum non conveniens”, which said lawsuits should be heard in the countries where the damage occurred.4

In 1992, this shift in regulation made it possible for 1,000 Costa Rican workers and their lawyers to win a case against Standard fruit (now Dole). The corporation agreed to pay $20 million to the affected workers. After legal fees, each worker was left with $1,500 to $15,000, depending on individual circumstances.5

In 1993, a class-action lawsuit was files in Texas by more than 16,000 banana plantation workers from Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua and the Philippines. The target was several fruit and chemical companies, including Dole, Chiquita, Del Monte, Dow, Shell and Occidental. The companies agreed to pay a total of $41.5 million in 1997 to those who proved they were sterile. However, when all legal fees were paid, the affected workers received relatively small payments.6

The Nemagon movement

The Nicaraguan Nemagon movement is the strongest independent popular movement in modern Nicaragua. It started up in the early nineties when former banana workers started to share strange experiences. Children were born with birth defects, women had miscarriages and the men seemed to be sterile. The former workers also suffered from skin and kidney diseases.

Under the name ASOTRAEXDAN (Association of Workers and Former Workers with Claims against Nemagon), this movement started protesting. They demanded justice, health care and coffins to bury their dead. An in-depth story about this can be found in the Envio Magazine article Victims of Nemagon hit the road (June, 2005).

In 1999, ASOTRAEXDAN began to push for a law to be passed in Nicaragua that would allow Nicaraguan workers to sue foreign companies. The law, known as "law 364", was registered in January 2001. In short, law 364 was directly intended to give DBCP victims and their relatives the right to demand compensation from the companies who imported and applied the chemical in Nicaragua. The law was instantly criticized by the U.S. Embassy in Nicaragua. They claimed the law being unfair to the transnational companies, and in March 2002, the Nicaraguan attorney general submitted a movement to the Nicaraguan Supreme Court to declare law 364 unconstitutional.7

In December 2002, Nicaragua’s Supreme Court ordered Dow Chemical Co., Shell Chemical Co. and Dole Food Co. to pay $490 million in compensation to 583 Nicaraguan banana workers. This landmark case was lead by plaintiff attorneys Thomas Girardi and Walter Lack, the same lawyers who fought the Erin Brockovich toxicity suit (which later became the blockbuster movie starring Julia Roberts).8

Neither Dow nor any of the other companies participated in the trial. Dow said they will not pay and called the judgment “unenforceable” because the case was supposed to be moved to a U.S. court. They also pointed at the previous claim of law 364 being unconstitutional. One year later, in October 2003, a judge in Los Angeles ruled that the judgment could not be enforced against the companies because they weren’t properly named or legally notified in the Nicaraguan court action.9

In April 2007, Amvac Chemical Co., one of the companies who produced and sold DBCP in the 1970s, agreed to pay a total of $300,000 to 13 Nicaraguan workers. In court papers, the company called the agreement a “compromise of disputed claims” and denied any wrongdoing.10

Tellez versus Dole

In 2004, Los Angeles based attorney Juan Dominguez teamed up with Duane Miller. Dominguez travelled to Nicaragua and started to register workers claiming they had been afflicted by the chemical. Over 10,000 clients were registered in Nicaragua alone.

In July 2007, the case was brought up in the Los Angeles Superior Court. Twelve workers alleged sterilization and accused Dole Food Co. and Dow Chemical Co. of negligence and fraudulent concealment in using DBCP. Compared to the cases from ’92 and ’93, this case was unique since no previous DBCP case had ever been presented to jurors.11

The companies acknowledged that DBCP can be linked to male sterility and that the product was used in Nicaraguan banana plantations. Dow also acknowledged that the possibility of harm existed, but said the product was safe as long as instructions were followed. Also, they claimed the quantities of DBCP were too small, and the open-air conditions too diffuse to harm workers.12

In 1977, Dow stopped their production of DBCP. Not only did Dole admit in court to using DBCP after this date, it demanded Dow to continue delivering it, or else Dow would be in breach of contract.

In November, 2007, the Los Angeles jury awarded $3.2 million to six of the twelve workers in compensatory damages. Jurors found that DBCP was defective and that its risks outweighed its benefits. They also found that Dole acted with malice and actively concealed the danger from its own workers.

Dow’s share of the damages ranged from 20% to 40% of the awards to each worker. Dow contended that the chemical was not defective if administered properly, and Dole denied that it had fraudulently concealed the danger. Dole called the verdicts unjust and appealed.13

Two weeks later, the jury added an additional $2.5 million in punitive damages against Dole as punishment for concealing the dangers of DBCP.

One of Dole’s attorneys, Rick McKnight, said the verdict was ”a huge defeat” for the workers. ”It doesn’t even pay their costs, much less their bills”, he said.14

Duane Miller said the verdict sends an important message to Dole: ”It lets [them] know that they’re accountable for what they do, even if they do it south of our border”, he said. ”Our reputation as a country is partially dependent on the reputations of our corporations doing things overseas”.15

But the case was not closed. In March 2008, the punitive damages were reduced by Judge Victoria Chaney from $2.5 million to six workers – to $1.58 million to four workers. Chaney found that because Dole was a user of the pesticide, not a marketer, the firm could not be subjected to liability without fault. She also reasoned that punitive damages may not be used to punish ”a domestic corporation for injuries that occurred only in a foreign country”.16

Dole later appealed and the case is still (May, 2009) pending in California.

The fraud case

In November 2008, Juan Dominguez brought two other DBCP cases on behalf of former Nicaraguan banana workers to the Los Angeles Superior Court.17

Dole claimed that all but one of 11 plaintiffs in the two cases had never worked on banana plantations and that the men were paid and coached by their attorneys. Several witnesses testified on videotape, some of them anonymous (the “John Doe witnesses”) since they claimed they feared for their lives for exposing the fraud.

In April 2009, Judge Victoria Chaney dismissed the cases.

“We’ll never know if anybody in Nicaragua was actually injured or harmed by the alleged wrongful conduct of the defendants, and people will never have the opportunity to learn, since this fraud is so pervasive and extensive that it has forever contaminated even our own ability to ever know the truth”, Chaney said during the April 23 hearing.

In May 2009, Dole attorneys tried to stop the film BANANAS!* from being shown based on the trailer. The film contains interviews with Juan Dominguez and courtroom scenes from the Tellez trial.

Judge Chaney refused to stop the film.

“Just so we’re clear, I am not in any way going to make, and I will not consider, any request for prior restraint on free speech”, Chaney said during the May 8 hearing.

Note: this article will not be updated. Please see the News section or the article BANANAS!* under fire – a timeline for the latest developments.

Links to the available transcripts from the Los Angeles court hearings:

• April 21, 2009 (PDF)
• April 23, 2009 (PDF)
• May 8, 2009 (PDF)

Articles about the fraud case:

• Dole accuses banana case attorneys of fraud
  Thomas Watkins, Associated Press, April 20, 2009
• LA judge rules fraud in lawsuits against Dole
  Linda Deutsch, Associated Press, April 24, 2009
• Judge refers lawyer for prosecution in Dole fraud
  Linda Deutsch, Associated Press, May 9, 2009

Notes and references

1. Nicaragua fights for “Death’s Dew” compensation
   Letta Tayler, Newsday.com, Dec 2, 2006
2. Dibromochloropropane (DBCP): a review
   National Center for Biotechnology Information (NCBI)
3. Plantation workers look for justice in the North
   Christian Miller, Los Angeles Times, May 7, 2007
4. Plantation workers look for justice in the North
   Christian Miller, Los Angeles Times, May 7, 2007
5. Pesticide Hazard in Costa Rica
   TED Case Studies
6. Banana Workers Win Against Dow, Shell and Standard Fruit
   Pesticide Action Network, Jan 6, 2003
7. Death Sentence – an honorable job
   Richard Leonardi, Mar 31, 2003
8. L.A. attorneys may face punishment in Dole case
   Alexa Hyland, L.A. Business Journal, June 16, 2008
9. Dole, Dow and Shell Win Dismissal of Suit
   Los Angeles Times, Oct 25, 2003
10. Pesticide company settles sterility suit for $300,000
    Christian Miller, Los Angeles Times, Apr 16, 2007
11. Pesticide trial begins against Dole and Dow
    Christian Miller, Los Angeles Times, Jul 20, 2007
12. Plantation workers look for justice in the North
    Christian Miller, Los Angeles Times, May 7, 2007
13. Dole must pay farmworkers $3.2 million
    John Spano, Los Angeles Times, Nov 6, 2007
14. Dole must pay $2.5 million to farmhands
    John Spano, Los Angeles Times, Nov 16, 2007
15. Dole must pay $2.5 million to farmhands
    John Spano, Los Angeles Times, Nov 16, 2007
16. L.A. judge reduces Dole’s damages in pesticide case
    John Spano, Los Angeles Times, Mar 11, 2008
17. Mejia, et al. v. Dole Food Company, Inc., et al. and Rivera, et al. v. Dole Food Company, Inc., et al.