Extracted from Law360
On June 22, the U.S. House of Representatives introduced a bipartisan bill that would strip California of its ability to require Proposition 65 warnings on pesticide products.
The Agricultural Labeling Uniformity Act would reinforce that only labels approved by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, can appear on pesticide packaging, and would directly preempt Proposition 65 warnings on pesticide products.
On Aug. 21, the bill was referred to the House Subcommittee on Conservation, Research, and Biotechnology.
California's Proposition 65 presents significant litigation risk to businesses nationwide. The federal legislation could thus bring relief to the pesticides and agriculture industries.
Meanwhile, the U.S. District Court for the Eastern District of California recently issued an injunction prohibiting California's attorney general from requiring Proposition 65 warnings on the labels of pesticides containing glyphosate, a widely used broad-spectrum herbicide.
That decision — addressing the very issue targeted by the bill — is up on appeal before the U.S. Court of Appeals for the Ninth Circuit.
Background on the Agricultural Labeling Uniformity Act
In June, Reps. Dusty Johnson, R-S.D., and Jim Costa, D-Calif., introduced H.R. 4288, the Agricultural Labeling Uniformity Act, which seeks to address inconsistent pesticide labeling standards.
H.R. 4288 seeks to reinforce the authority of FIFRA, which regulates the registration, labeling, distribution, sale and use of pesticides in the U.S. The proposed legislation emphasizes that the EPA alone holds the responsibility for establishing pesticide labeling and packaging mandates, and thus promotes uniformity and consistency in pesticide labels. Specifically:
- The bill would clarify that only labels approved by the EPA under FIFRA are to be displayed on pesticide packaging.
- The legislation seeks to prevent states, instrumentalities or courts from imposing any labeling or packaging requirements that differ from, or are in addition to, those approved by the EPA under FIFRA. This includes mandating any additional requirements or imposing penalties related to labeling or packaging.
- The EPA administrator would be prohibited from permitting any labeling that contradicts conclusions drawn from human health assessments or carcinogenicity classifications performed under FIFRA.
Under FIFRA, states can regulate the sale or use of pesticides; however, states are prohibited from imposing their own labeling requirements that are different from the EPA's science-based approach to labeling requirements. The proposed legislation aims to address the situation where certain states are introducing labeling requirements that extend beyond the EPA-approved labels.
This reaffirmation of the EPA's role would help ensure consistency in pesticide labeling, providing certainty for both agricultural producers and consumers, and creating efficiencies by simplifying labeling for producers selling in multiple states.
This certainty, in turn, contributes to the ongoing safety and accessibility of the tools that support the agriculture industry and the broader food supply chain.
Background on California's Proposition 65
California's Safe Drinking Water and Toxic Enforcement Act, commonly referred to as Proposition 65, requires businesses with 10 or more employees to provide warnings to consumers about exposure to chemicals that are known to cause cancer, birth defects or other reproductive harm.
Under Proposition 65, California's Office of Environmental Health Hazard Assessment, or OEHHA, publishes a list of chemicals that are known to cause cancer, birth defects or other reproductive harm.
Businesses that manufacture, package, distribute, supply or sell products in California that expose individuals to these listed chemicals are required to provide "clear and reasonable" warnings, typically through labels on products or in specific locations where exposure could occur. The California attorney general, any district attorney and certain city attorneys are authorized to enforce Proposition 65.
In addition, any person — even someone who has not suffered harm or ever consumed a particular product — may bring a private enforcement action concerning the product on behalf of the public interest. The overwhelming majority of Proposition 65 actions are brought by private enforcers.
The statute imposes civil penalties of up to $2,500 per day for each failure to provide an adequate warning. The statute also provides that any person who "threatens to violate" the warning requirement may be "enjoined in any court of competent jurisdiction."
In practice, this means businesses must either display warnings for the chemical in question, or agree to reformulate their products to reduce the level of exposure. Private enforcers regularly seek substantial attorney fees in bringing these matters to court.
The Risk of Private Enforcement
Proposition 65's private enforcement regime has presented significant risks and obstacles for businesses nationwide, given its provision that places the burden on the defendant to prove its products do not expose consumers to listed chemicals.
Imposing on companies the duty to prove that their products do not exceed exposure thresholds leaves them vulnerable to the flood of lawsuits that have resulted from Proposition 65's enforcement standards.
As the California Court of Appeal explained in Consumer Defense Group v. Rental Housing Industry Members in 2006, "the burden shifting provisions make it virtually impossible for a private defendant to defend a warning action on the theory that the amount of carcinogenic exposure is so low as to pose no significant risk, short of actual trial."[1]
On the other hand, the court explained in the same opinion that the burden of proof for plaintiffs is "absurdly easy given the burden shifting provisions. … Basically, it is: Get your [notice], send your notice, file suit, and if the defendant doesn't want to spend money to fight you at trial … collect money."
Former California Gov. Edmund Brown echoed this sentiment in remarks in 2013: "Proposition 65 is a good law that's helped many people, but it's being abused by unscrupulous lawyers."
Impact of H.R. 4288 on California's Proposition 65
If adopted, H.R. 4288 would remove the requirement for — and prohibit — Proposition 65 warnings for pesticide products, since it would preempt "any State, instrumentality or political subdivision thereof" from requiring labeling in addition to or different from the labeling or packaging approved by the EPA pursuant to FIFRA.
An ongoing California case, National Association of Wheat Growers v. Zeise, exemplifies the importance and relief H.R. 4288 could bring to the agriculture industry.[2]
The plaintiffs, including Monsanto Co. and agricultural associations, argued that the state's labeling requirement violated their First Amendment rights by compelling them to make "false, misleading, and highly controversial statements," due to the debate in the scientific community over whether glyphosate — a chemical found in Monsanto's pesticides — is carcinogenic. The EPA has concluded that there is insufficient or no evidence to support the claim that glyphosate causes cancer.
On June 22, 2020, the Eastern District of California issued a permanent injunction in the plaintiffs' favor, finding there is not enough evidence to show glyphosate causes cancer, which means requiring cancer warnings would compel false or misleading speech. The state has appealed this decision.
During oral arguments before the Ninth Circuit in April of this year, the panel questioned both parties on the appropriate authority to determine whether a chemical is a probable carcinogen.[3] Under H.R. 4288, that authority would be the EPA's carcinogenicity classifications for pesticides pursuant to FIFRA, which reported glyphosate as "not likely to be carcinogenic to humans" on Dec. 12, 2017.[4]
Impact on the Pesticides and Agriculture Industries
If adopted, H.R. 4288 would bring significant relief to the pesticide and agriculture industries, by preempting Proposition 65's requirements for labeling pesticide products. It would also preempt any labeling requirements adopted by other states that are different from, or in addition to, the labeling or packaging requirements approved by the EPA under FIFRA.
While glyphosate is one chemical on the Proposition 65 list that is commonly found in pesticides, there are over 100 other chemicals on the Proposition 65 list that are also found in pesticide products.[5]
H.R. 4288 has the potential to relieve companies faced with the risk of burdensome private litigation for the failure to display warnings for alleged exposures to dozens of chemicals that are commonly found in pesticide products, but that the EPA has determined are not likely to be carcinogenic.
H.R. 4288 would take the authority to regulate labeling and packaging for pesticides out of the hands of California — and other states — and place it squarely within the hands of the federal government.
[1] Consumer Defense Group v. Rental Housing Industry Members, 137 Cal.App.4th 1185, 1214 (internal quotations and citations omitted).
[2] National Association of Wheat Growers et al. v. Zeise et al., No. 2:17-cv-02401 (E.D. Cal.).
[3] National Association of Wheat Growers et al. v. Bonta et al., No. 20-16758 (9th Cir.).
[4] See EPA, Chemicals Evaluated for Carcinogenic Potential by the Office of Pesticide Programs (Nov. 1, 2022), available at: http://npic.orst.edu/chemicals_evaluated.pdf.
[5] See California Department of Pesticide Regulation, Pesticides on the Proposition 65 List, available at: https://www.cdpr.ca.gov/docs/dept/factshts/prop_65_list.pdf.