The Environmental Protection Agency is evaluating whether to enact new rules declaring pesticides misbranded if they include any warnings based on information not included in the agency's risk assessments.
The agency is weighing a petition submitted by 11 state attorneys general that aims to reduce failure-to-warn litigation against pesticide companies in state courts and preempt state-level labeling requirements states may seek to implement.
The petition seeks new rules under the Federal Insecticide, Rodenticide and Fungicide Act that would deem pesticides misbranded if they were to include risk of cancer, birth defect or reproductive harm warnings inconsistent with EPA’s human health risk assessments, which are generally conducted every 15 years.
In the petition, the attorneys general specifically listed protecting glyphosate as one of their goals. Bayer, which uses glyphosate as the active ingredient in Roundup, is fighting thousands of failure-to-warn lawsuits that have been filed in federal and state courts.
“What’s really going on here with the petition is an attempt to get EPA to write a regulation that would eliminate the kinds of lawsuits that are going on with Roundup,” said Bill Jordan, a former deputy director for programs in EPA’s Office of Pesticide Programs.
About 114,000 Roundup cases have either been settled or are "not eligible for various reasons” as of Jan. 31, according to Bayer's 2024 annual report, leaving about 67,000 in the wings. Many plaintiffs have filed in Missouri. The company spent about $10 billion to settle about 100,000 of those claims and has set aside $5.9 billion for future cases.
Twenty-seven Roundup trials had concluded in federal and state courts in California, Missouri, Oregon, Arkansas, Delaware, Illinois and Pennsylvania as of Jan. 31, Bayer's report said. It added that it reached "favorable outcomes” in 17 of those, while plaintiffs were awarded compensatory and, in some cases, punitive damages in the other 10.
Bill Jordan (American University photo)
Bayer and a coalition of more than 90 farm groups supportive of glyphosate have been pushing state legislatures to enact bills making FIFRA labels sufficient to satisfy warning requirements under civil tort law. One such measure was approved by both chambers of Georgia’s state legislature last month and now awaits Gov. Brian Kemp’s signature.
Bayer attorneys have consistently argued that FIFRA preempts state-based failure-to-warn claims. While that argument was rebuffed by judges in the 9th and 11th circuits, it found favor with those in the 3rd Circuit, creating a split that could make it easier for Bayer to persuade the Supreme Court to take up the appeal.
The company filed a petition with that court April 4 seeking review of a decision from the Missouri Court of Appeals.
Bayer also submitted a comment in support of the AGs' petition, which claimed that some courts “have misinterpreted the relative law and regulatory framework, leading to non-uniformity of labeling in direct contravention of Congress’s intent.” Bayer’s glyphosate products account for approximately 40% of the global market and U.S. farmers would likely need to either turn to foreign sources of the product or grow less if that access was cut off, the comment said.
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"As the petitioners note, the ambiguity created by some states and courts — through an interpretation of FIFRA that its plain language does not support — will undermine farmer access to herbicides such as glyphosate,” Bayer’s comment said.
But Lori Andrus, president of the American Association for Justice, argued in a comment that the proposed petition “would remove decades of precedent and a vital safety net in protecting the public from misbranded pesticides.” She added that while Congress has made it clear that while all pesticides must be registered with the EPA, “this power does not extend to pre-empting state laws that are consistent with the EPA’s authority.”
In an emailed statement to Agri-Pulse, Andrus said the proposal laid out in the petition "would strip basic safety protections from farm families across over 16,000 EPA-registered chemicals by giving total legal immunity to companies if their products cause cancer, Parkinson's disease, infertility or developmental harm to our families or children."
Andrus contends EPA does not have the legal authority to grant the petition but added that if the agency were to enact a rule like the petition requests, "pesticide companies would immediately move to dismiss tens of thousands of cases filed against them by farm families."
However, the agriculture commissioners of 12 states argued in a comment that “the lack of clarity in the court system has only increased regulatory uncertainty” since the petition was first filed last August. They said that the 3rd Circuit Court of Appeals ruled last August that state-based failure-to-warn claims are expressly preempted by FIFRA, while trial courts in Pennsylvania, Missouri and Illinois have issued contradictory rulings.
“The patchwork of legal rulings disrupts the agricultural sector and has created massive uncertainty for farmers,” the agricultural commissioners said. They advocated for EPA to “reaffirm its authority to make pesticide findings and decisions under FIFRA.”
Leah Nicholls (Public Justice photo)Leah Nicholls, the director of the Access to Justice Project at Public Justice, wrote in opposition to the petition, arguing that Congress "intended state law to complement federal regulation.”
"In short, state tort suits — which have long been brought against pesticide manufacturers based on improper labeling — further the objectives of FIFRA to keep pesticide labels accurate, up to date, and sufficiently protective of health,” Nicholls wrote in a comment. "Congress was well aware of the prevalence of state tort suits in this area, and embraced rather than displaced them."
In addition to protecting glyphosate, the state attorneys general who submitted the petition also said they were seeking the rule change to preempt warning requirements enacted by states. California’s Proposition 65, for instance, previously required a label warning of glyphosate’s potential as a human carcinogen, but the 9th Circuit Court of Appeals found in 2023 that the warning violated the plaintiffs’ First Amendment right to be free from compelled speech.
While California’s enforcement of Proposition 65 on glyphosate products was enjoined by the court, "the threat of labeling rules that differ by state, common-law failure-to-warn claims, and future, needless litigation continues,” wrote the petitioners, who include the attorneys general for Nebraska, Iowa, Alabama, Arkansas, Georgia, Indiana, Louisiana, Montana, North Dakota, South Carolina and South Dakota.
In a comment supporting the petition, 296 state and federal agricultural groups said if states were to seek to impose pesticide health claims on labels that went against EPA findings, it would place manufacturers “in a no-win situation — either do not comply with a state requirement or comply with the state requirement and include language on a pesticide package that is false and misleading.” They also warned that differences in state labeling requirements could create an “unworkable patchwork of conflicting state label claims.
The groups included the American Soybean Association, the National Corn Growers Association, the American Seed Trade Association, the U.S. Peanut Federation, USA Rice and the American Farm Bureau Federation.
More than 73,000 comments were submitted to EPA during the public comment period.
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