10
Feb
Beyond Pesticides Calls for Public Comment To Stop Prohibitions on State Pesticide Hazard Warnings
(Beyond Pesticides, February 10, 2025) With the shutting down of key federal government programs, Beyond Pesticides is urging the public to speak out, especially on issues that preserve state and local authority to protect public health and safety in the absence of adequate federal standards. In this context, the U.S. Environmental Protection Agency (EPA) is considering a petition with a proposed policy that would, if adopted, prohibit states from issuing warnings of pesticide hazards, like cancer, on product labels. EPA is taking public comment through February 20, 2025, on the petition, filed by the attorneys general (AGs) of 11* states.  The petition asks EPA to prohibit “any state labeling requirements inconsistent with EPA findings and conclusions from its human health risk assessment on human health effects, such as a pesticide’s likelihood to cause cancer, birth defects, or reproductive harm.†[*The 11 states filing the petition include: Alabama, Arkansas, Georgia, Indiana, Iowa, Louisiana, Montana, Nebraska, North Dakota, South Carolina, and South Dakota.]
According to Beyond Pesticides: “The only conclusion that can be derived from this petition is that the AGs do not care if the people, including farmers, of their states are harmed by pesticides, and they should not be able to seek compensation if they suffer adverse effects. People who argue that the chemical industry is subject to federal or state government overregulation to protect health and safety, are the same people who often argue, like in this petition, that the government should prohibit people from seeking justice in the courts if they are harmed because of inadequate disclosure and government regulation.â€
>> Tell EPA to protect states’ rights to warn citizens of the dangers of pesticides.
While the petition is short and does not cite specifics, it clearly targets California’s Proposition 65 warnings on glyphosate (RoundupTM) weed killer products but could have a much broader effect in an “anything goes†regulatory climate under the Trump administration. For instance, since the mechanism typically used to convey use restrictions is the pesticide product label, prohibiting a state’s authority to issue warning labels undermines its regulatory authority. If states cannot convey their restrictions on the label, it is unlikely that a user of the product will be aware of the restrictions. Similarly, the courts have upheld a state’s and manufacturer’s “duty to warn†of pesticide hazards as a right and responsibility that is not at odds with “misbranding†regulations under federal pesticide law. (See more details on this below.)
In 2019, during the previous Trump administration, EPA told California’s Office of Environmental Health Hazard Assessment (OEHHA) that its label language for glyphosate violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Subsequently, California’s Office of Environmental Health Hazard Assessment (OEHHA) explained to EPA:
Proposition 65 is a right-to-know law that requires businesses to provide a clear and reasonable warning prior to exposing people in California to chemicals that have been listed as carcinogens or reproductive toxins. The warnings provide an important public health benefit by allowing individuals to make informed decisions about their exposures to listed chemicals.
Proposition 65 requires the listing “at a minimum†of chemicals that the International Agency for Research on Cancer (IARC) places in certain carcinogenicity classifications. In 2015, IARC placed glyphosate in a classification that mandated California’s listing of the chemical under Proposition 65. Because glyphosate is now listed as a carcinogen under Proposition 65, Proposition 65 requires businesses to provide warnings if their products that contain glyphosate would result in exposures, unless those exposures fall below a certain level.Â
California OEHHA asked EPA whether language citing IARC’s classification would be allowed, and, in 2022, the Biden EPA said that with that specificity, it would. While California allows several options for communicating the Prop 65 warning for pesticides, historically, the label has been used to convey warnings about pesticides. In judgments awarding damages to those suffering from cancer as a result of exposure to glyphosate, courts have pointed to the failure to warn users of the hazards. A Pesticides and You article (2005) by H. Bishop Dansby explains the U.S. Supreme Court decision on “failure to warn†in Bates v. Dow Agrosciences (U.S. Supreme Court, No. 03-388, 2005): “Manufacturers have a legal duty to provide adequate warnings about the potential risks associated with their products, including pesticides. This duty arises from the recognition that manufacturers possess knowledge about the potential dangers of their products and have a responsibility to inform consumers about these risks.â€Â
With regard to pesticide regulation, FIFRA clearly states, “A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this Act,†which is followed by a clause requiring uniformity of labeling. By focusing on the uniformity of labels, the AG petition would prohibit the state from requiring product labels to warn users of potential hazards, thus subjecting users to a greater risk of illness and eliminating the incentive for manufacturers to develop safer products. It should also be noted that many local laws require service providers, such as lawn care operators or exterminators, to provide the labels of pesticide products that will be used in their contracts.
States and local governments are often at the leading edge in protecting people, land, and water from hazards.Â
The attack on state authority, as well as local authority, to restrict pesticides is a bottom-line or foundational issue for public health and environmental protection.Â
As momentum builds for local restrictions on pesticide use in the face of ongoing poisoning and contamination, it is clear that effective land management does not require toxic pesticide use. Historically, local municipalities have exercised their democratic right to protect public health and safety where state and federal standards are not adequately protective of their residents. EPA should not be telling states and local governments that they cannot exercise this right, one that has been used effectively to regulate smoking, recycling, dog waste, and other standards. In fact, the U.S. Supreme Court reached this conclusion in its decision in Mortier (see more and court decision). Further, the AGs in the petition are attempting an end-run around the Supreme Court’s decision in Bates (see court decision), in which Dow Chemical unsuccessfully argued that their registration with EPA preempted any litigation against them for the harm caused by their product, and more specifically that FIFRA’s labeling requirements preempted cases arguing failure-to-warn or inadequate labeling. Here is Beyond Pesticides’ piece on the right of local government in a state that does not preempt its local jurisdictions (municipalities) from restricting pesticides more stringently than the state and the federal government. And, see the Maryland Court decision.
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The ramifications of any prohibition on state authority to require label changes are extremely broad because the label is typically the mechanism used by federal and state regulatory authorities to communicate legal use restrictions of a pesticide product. If a state is prohibited from conveying pesticide restrictions or warnings via the pesticide product label, it is unlikely that the user will, for practical purposes, be aware of the restrictions or warnings.
Suggested comment to EPA (due by February 20 at 11:59 pm EST):
Please deny the attorneys general (AGs) petition, which misrepresents the authority and responsibility of state governments in their role to protect public health and safety.
While the petition targets California Prop 65 warnings on glyphosate products, it goes much further in restricting the authority of states to restrict pesticides under FIFRA. In 2019, EPA told California’s Office of Environmental Health Hazard Assessment (OEHHA) that its label language for glyphosate violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Subsequently, OEHHA explained to EPA:
Proposition 65 is a right-to-know law that requires businesses to provide a clear and reasonable warning prior to exposing people in California to chemicals that have been listed as carcinogens or reproductive toxins. The warnings provide an important public health benefit by allowing individuals to make informed decisions about their exposures to listed chemicals.
Proposition 65 requires the listing “at a minimum†of chemicals that the International Agency for Research on Cancer (IARC) places in certain carcinogenicity classifications. In 2015, IARC placed glyphosate in a classification that mandated California’s listing of the chemical under Proposition 65. Because glyphosate is now listed as a carcinogen under Proposition 65, Proposition 65 requires businesses to provide warnings if their products that contain glyphosate would result in exposures, unless those exposures fall below a certain level.
California OEHHA asked EPA whether language citing IARC’s classification would be allowed, and in 2022, EPA said that with that specificity, it would. While California allows several options for communicating the Prop 65 warnings, historically, the label has been used to convey warnings about pesticides. In jury verdicts awarding damages to those suffering from cancer as a result of exposure to glyphosate, courts have pointed to the failure to warn users of the hazards. A Pesticides and You article (2005) by H. Bishop Dansby explains the U.S. Supreme Court decision on “failure to warn†in Bates v. Dow Agrosciences (U.S. Supreme Court, No. 03-388, 2005): “Manufacturers have a legal duty to provide adequate warnings about the potential risks associated with their products, including pesticides. This duty arises from the recognition that manufacturers possess knowledge about the potential dangers of their products and have a responsibility to inform consumers about these risks.â€Â
With regard to pesticide regulation, FIFRA clearly states, “A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this Act,†which is followed by a clause requiring uniformity of labeling. By focusing on the uniformity of labels, the AG petition would prohibit the state from requiring product labels to warn users of potential hazards, thus subjecting users to greater risk of illness.
States and local governments often take creative measures to protect people, land, and water from hazards. States and local governments believe in their right to protect their residents from poisoning and contamination, a right that has been upheld by the U.S. Supreme Court. The only conclusion that can be derived from the petition is that the AGs do not care if the people, including farmers, of their states are harmed by pesticides, and they should not be able to seek compensation if they suffer adverse effects due to a failure to warn on a pesticide label. The courts have upheld a state’s and manufacturer’s “duty to warn†of pesticide hazards as a right and responsibility that is not at odds with “misbranding†regulations under federal pesticide law.
Please uphold the rights of states and deny the AG petition.
Thank you.
