Overview
The U.S. House of Representative’s recent introduction of a bipartisan pesticide labeling bill would, if passed, preempt states from imposing different –or additional– pesticide labeling obligations than those approved by the U.S. Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This effort, entitled the Agricultural Labeling Uniformity Act (H.R. 4288), would take aim at the ongoing consequence of states and local agencies requiring different labels for the same pesticide products, and the variable science underlying these obligations. The impact of these inconsistencies has been felt both by the agricultural industry faced with an onerous if not impossible compliance burden, as well as consumers who are left puzzled by contradictory warnings.
For companies doing business in California that are regularly under the threat of Proposition 65 (Prop 65) enforcement, the shift in labeling requirements would mean that only labels approved by EPA could appear on pesticide packaging. This immediately calls to mind pesticide products containing the popular herbicide, glyphosate, which is listed as a Prop 65 cancer causing chemical. Among other things, Prop 65 requires that businesses provide warnings to consumers before purchase of a product that contains any one of over 900 chemicals identified by the state as capable of causing cancer or reproductive harm. Glyphosate was added to the Prop 65 list based on an International Agency for Research on Cancer finding that glyphosate is a “probable human carcinogen.” However, because EPA has a contradictory finding that there is insufficient evidence to show that glyphosate causes cancer, the bill would directly preempt a Prop 65 cancer warning for pesticide products containing glyphosate.
The validity and constitutionality of the Prop 65 warning for glyphosate has already been under judicial scrutiny for several years. In National Association of Wheat Growers v. Zeise, 309 F. Supp. 3d 842 (E.D. Cal. 2018), the U.S. Court for the Eastern District of California issued a permanent injunction blocking the enforcement of the Prop 65 cancer warnings for glyphosate, holding that requiring companies to label glyphosate-based products as a known carcinogen violates First Amendment rights by compelling “false, misleading, and highly controversial statements.” In coming to its ruling, the Court pointed to the debate over glyphosate’s carcinogenicity and EPA’s contradictory finding that there is insufficient or no evidence to support the claim that glyphosate causes cancer. This decision is currently on appeal before the U.S. Court of Appeals for the Ninth Circuit, and oral arguments were heard in April 2023.
Interestingly, even if the injunction were overturned on appeal, passage of H.R. 4288 would accomplish a similar end result of prohibiting Prop 65 enforcement actions for alleged failure to warn for glyphosate content in pesticide products. Certainly, the outcome of this legislation could shape the future of Prop 65 enforcement. If enacted it would, at the least, effectively knock glyphosate off the Prop 65 enforcement list. Its passage would also curb enforcement actions for other Prop 65 listed chemicals contained in pesticide products, where EPA has determined that those chemicals are not carcinogenic.
Whether the introduction or enactment of the bill will jumpstart a trend toward uniformity and sound science in the application of Prop 65 that reaches beyond pesticides is to be determined. The fact that the Ninth Circuit reinstated a temporary injunction against the filing or prosecution of new Prop 65 lawsuits related to acrylamide in food and beverage products bodes well for that prediction. Cal. Chamber of Comm. v. Becerra, 529 F. Supp. 3d 1099 (E.D. Cal. 2021), aff’d, 29 F.4th 468 (9th Cir. 2022), cert denied, ---U.S.----, ---S.Ct.----, ---L.Ed.2d----, 2023 WL 2959385 (Apr. 17, 2023). The Becerra Court recognized that the scientific evidence fails to demonstrate that acrylamide causes cancer, and its listing as a carcinogen under Prop 65 is tenuous at best. If a permanent injunction is eventually issued, it may provide more momentum toward addressing areas of weakness and abuse in Prop 65 enforcement.
Not surprisingly, the bill’s desired effect of promoting consistency and uniformity through the application of sound science in pesticide labeling is supported by state and national agricultural organizations, who have long struggled to manage the obstacles presented by regulations such as California’s Prop 65. On the other hand, environmental advocates are certain to battle the legislation and ignite a contentious debate concerning the balance of authority between local, state and federal regulatory control. The bill is in the early stages of the legislative process and was referred to the relevant House Subcommittee on August 21, 2023. We will continue to track its progress and implications.
