California Can’t Usurp USEPA’s Authority Over Roundup® Labeling

California’s Attorney General just doesn’t get it. Maybe he’s been watching too many of those slick infomercials trolling for Roundup® “victims.”

In 1972 Congress enacted a law—the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)—that gives the U.S. Environmental Protection Agency (EPA) sole and exclusive authority to regulate the content of pesticide product labeling. FIFRA vests EPA with this authority by expressly preempting a State from imposing any requirements for a pesticide’s labeling that are “in addition to or different from” the labeling requirements imposed by EPA.

No State—not even California—can second-guess EPA’s unequivocal, carefully considered, science-based determination that the labeling for herbicides containing glyphosate, e.g., Roundup®, does not require a cancer warning. In fact, as I discussed in a previous blog, EPA has indicated that including a cancer warning on glyphosate labeling would be false and misleading, and thus, would violate FIFRA’s prohibition against distributing pesticides that are misbranded. See EPA Finally Flexes Some Preemption Muscle.

A 2005 U.S. Supreme Court decision, Bates v. Dow AgroSciences LLC, confirms EPA’s exclusive authority over the content of pesticide labeling. The spin that the plaintiffs’ bar long has placed on Bates—that a jury can hold a pesticide producer liable under state law for failing to provide a label warning that EPA does not require, or even allow—is wrong. See  US EPA’s Glyphosate No-Risk Finding Withers Plaintiffs’ Bar & Can FIFRA Preemption Be Revived?

Nonetheless, the State of California this week filed in the U.S. Court of Appeals for the Ninth Circuit an amicus curiae brief arguing that FIFRA does not preempt a personal injury suit claiming that the manufacturer of Roundup® should be held liable for failing to include a cancer warning on the product’s EPA-regulated and approved labeling.  California’s brief was in response to an earlier amicus curiae brief filed by the United States arguing that FIFRA preempts the plaintiff’s failure-to-warn claim.

There are too many flaws in California’s legal arguments to recount here. But one whopper is California’s sleight of hand with the concept of a misbranded pesticide: In Bates the Supreme Court indicated that FIFRA’s prohibition against misbranding, e.g., distributing a pesticide with false or misleading label statements or with inadequate warnings, sets the standard governing EPA’s exclusive authority to regulate pesticide labeling. Bates also indicated that although a State cannot impose its own additional or different labeling requirements, it can impose labeling requirements that are parallel or equivalent to EPA’s requirements. California’s brief transmogrifies this “parallel” authority into a license to second-guess the way that EPA applies the FIFRA misbranding standard to the labeling of a particular pesticide—such as EPA’s determination that Roundup® would be misbranded if its labeling included a cancer warning.

California’s argument conveniently transforms a State’s authority to enforce EPA’s labeling requirements for a particular pesticide into a license to decide for itself what those labeling requirements should be. FIFRA, however, preempts California from doing exactly that.  Neither California nor any other State can disagree with an EPA misbranding determination, either directly or through a jury in a state-law product liability suit. A California jury could find that a Roundup® product was misbranded if it was not distributed or sold with the exact labeling required by EPA.  For example, a California jury could find that a Roundup® product was misbranded if it included a cancer warning. That would be consistent with, i.e., parallel to, EPA’s specific misbranding standard for Roundup® products.  But FIFRA preempts a jury from finding that, as a matter of California  law, a Roundup®  product was misbranded by omitting a cancer warning. That would be a state-imposed labeling requirement in addition to or different from—not parallel or equivalent to, or consistent with—EPA’s nationally uniform labeling requirements for Roundup®  products.

Hopefully, the Ninth Circuit will adhere to what FIFRA’s preemption provision, and Bates interpretation of that provision, actually say. The court of appeals should hold that a pesticide producer cannot be held liable under state law for failing to include a label warning that EPA has determined would be false and misleading.

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