Pesticide labeling requirements are intrinsically tied to environmental safety and public health. Although federal pesticide disclosure requirements insufficiently address health and safety, they tend to preempt states such as New York from enacting more stringent state disclosure requirements. Nonetheless, Beyond Pesticides v. Monsanto Co. clarified that state pesticide requirements with a narrower scope than federal requirements evade preemption, which is reflected in California’s pesticide labeling requirements. Accordingly, New York should draft pesticide disclosure laws inspired by Beyond Pesticides and California requirements to creatively evade preemption while advancing statewide health and safety concerns.
“Pesticides are unlike other toxic chemicals in that they are meant to kill things.” While this may seem obvious, pesticide consumers may unknowingly face health risks from misusing pesticides if pesticide labels inadequately disclose risks. In that scenario, manufacturers could avoid liability for failing to disclose pesticide risks while further profiting from pesticide sales. Accordingly, United States pesticide disclosure regulations are key to public health.
Although these laws exist on federal, state, and local levels, there is a tension between state and federal governments surrounding pesticide disclosure regulations. Namely, the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) contains the leading pesticide laws. Importantly, FIFRA allows the Environmental Protection Agency (“EPA”) to approve novel pesticides’ labels despite a lack of significant public health data if EPA finds that those pesticides are “in the public interest.” This may allow EPA to approve potentially dangerous pesticides for sale, threatening pesticide consumers’ health.
In response to such approvals, states may wish to enact their own pesticide labeling disclosure laws to support consumer health. However, they may be hindered from doing so by FIFRA’s express preemption law, which forbids states from continuing or imposing pesticide labeling requirements “in addition to or different” from FIFRA’s requirements. Yet states such as California have found ways to evade FIFRA preemption through innovatively wording their own pesticide disclosure regulations.
Federal Preemption Regulations
FIFRA is the foundational preemption law because it provides a uniform, national pesticide disclosure standard with which states must comply. But before elaborating on FIFRA, it is important to distinguish the two types of preemption: express and implied. Express preemption refers to when Congress explicitly states its intent to preempt state authority. Alternatively, implied preemption arises in two instances: (i) when federal law is considered to encompass a field, effectively prohibiting supplemental state laws, or (ii) when Congress has not wholly encompassed a field, but state and federal law conflict such that it would be impossible to simultaneously comply with both laws.
Within the FIFRA context, express and implied preemption both come into play. In terms of express preemption, FIFRA explicitly prohibits states from imposing or continuing in effect any labeling requirements “in addition to or different from” those required by FIFRA. This preemption clause is foundational to federal and state pesticide disclosure tensions. On the other hand, implied preemption typically arises within case law, which the following subsection discusses.
Federal Law
Federal preemption law is almost exclusively based on FIFRA’s statutory language and requirements. FIFRA grants the EPA Administrator broad discretion over pesticide registration. For instance, EPA is authorized to approve most pesticides for sale based on proper labeling, among other requirements. Namely, misbranded pesticide labels include those with false or misleading “statement[s], design[s], or graphic representation[s];” inadequate pesticide use directions; and inadequate “warning or caution statement[s].” For the latter two types of labels, the EPA Administrator must determine whether the labels are “adequate to protect health and the environment.”
Despite those labeling determinations, EPA does not necessarily prioritize public health in its pesticide approvals. For example, FIFRA defines “protection of health and the environment” as EPA’s protection against “unreasonable adverse effects” including public health risks. EPA evaluates these risks by weighing the pesticide’s “economic, social, and environmental” costs and benefits. This ambiguous language allows EPA to consider a pesticide’s public health costs to a lesser degree than other factors like the pesticide’s financial success. This is concerning due to the national pesticide industry’s immense profits. Relatedly, EPA has authority to approve novel pesticides lacking a significant amount of public health data if it deems those pesticides to be “in the public interest.” This nearly unfettered EPA discretion under FIFRA may indicate why the federal and state tension surrounding pesticide labeling requirements exists.
Case Law
Briefly returning to implied preemption, FIFRA labeling disputes are unlikely to arise within category (i) of implied preemption since courts interpreted “in addition to or different from” in various ways. On the other hand, implied FIFRA preemption under category (ii) is central to case law centering state pesticide disclosure requirements. Relatedly, multiple cases exemplify state and federal pesticide disclosure tensions, which largely arise from the preemption defense. This refers to manufacturers’ attempts to halt lawsuits against their pesticides based on preemption by moving to dismiss or bringing a preemption defense.
A related landmark case is Bates v. Dow Agrosciences LLC. The petitioners claimed that Dow, a pesticide manufacturer, had sold them a federally registered pesticide with a label stating that it could be used anywhere “peanuts […were] grown.” Yet once the petitioners applied the product to their crops, the crops were severely damaged. Among other state law claims, the petitioners brought negligent testing and failure-to-warn claims and alleged that Dow had violated a state deceptive trade practices act. Dow partially succeeded on a preemption defense since the Supreme Court held that the negligent failure-to-warn claim was preempted since it was based on labeling or packaging requirements. On the other hand, the Supreme Court held that the remaining state law claims stated above evaded preemption since they were not directly labeling or packaging requirements. The Court reasoned that FIFRA does not preempt state laws “fully consistent with” FIFRA’s requirements.
More recently, Beyond Pesticides v. Monsanto Co. elaborated on the Bates’ reasoning. There, the petitioners claimed that a Monsanto pesticide’s advertisements including that the pesticide did not target enzymes “in people or pets” were false and/or misleading under a Washington D.C. consumer protection act. Monsanto moved to dismiss the claim on various grounds including FIFRA preemption but the U.S. District Court determined that the claims were not preempted because they fell within the D.C. act, which did not expand beyond FIFRA. The court explained although state pesticide laws evading preemption must typically be “equivalent in fact” to FIFRA’s labeling requirement, state laws narrower than FIFRA may evade preemption without being “equivalent in fact” to FIFRA.
State Regulatory Efforts
Statewide public health concerns are central to FIFRA and state tensions. Although FIFRA helps streamline pesticide approval processes instead of states potentially elongating and complicating approvals, states argue that such approvals do not necessarily address states’ health concerns related to pesticides. Namely, EPA approvals of pesticides “in the public interest” may concern states due to the phrase’s ambiguity in FIFRA. As such, New York and California have enacted state-specific pesticide regulations, leaving open the potential for statewide pesticide label requirements addressing state-specific health concerns.
New York Model Law
Article 33 of the New York Consolidated Laws contains the state’s primary pesticide labeling laws. First, Section 33-0303 establishes that the state commissioner has exclusive state authority to oversee statewide pesticide sales and use. Additionally, that section suggests that state and federal pesticide labeling requirements should be uniform to avoid both “confusion endangering the public health and increased costs [for state residents].” In stating this, New York seemingly mirrors federal preemption concerns based on labeling differences. Yet Section 33-0303 allows the commissioner to require that New York pesticide manufacturers submit a complete formula of any pesticide whenever he deems it necessary under the law.
Second, Section 33-0707 emphasizes the commissioner’s discretion in requiring pesticide manufacturers to submit a pesticide’s complete formula. The section adds that such required formulas may be revealed when the commissioner deems it necessary to advisory committees or federal or state departments, among others. This further illustrates the state’s authority over pesticide approvals based on state discretion.
Third, Section 33-0713 allows the commissioner to cancel a pesticide’s registration if its label is misbranded based on Section 33-0101, which is consistent with FIFRA’s definition of “misbranded.” As such, the latter section states that misbranded state pesticides include in part those with false or misleading labels as well as labels lacking warning or caution statements necessary and “if complied with, adequate for the protection of the public.” Despite these cancellation options, a manufacturer may prevent the cancellation from going into effect by objecting and requesting a public hearing, among other preventative measures.
California Model Law
The California Code of Regulations specifies statewide pesticide disclosure. Similar to New York’s commissioner, California’s director of the Department of Pesticide Regulation (“DPR”) oversees statewide pesticide sales and registration. Namely, DPR’s registered labels must “meet, but not exceed, current U.S. EPA labeling requirements.” And since EPA must register any pesticide before it can be used, California seems to foresee preemption concerns arising from labeling requirements.
Nonetheless, DPR takes various measures to strengthen public health measures for California pesticides prior to their use. For instance, EPA-approved pesticides are subject to DPR evaluations to protect public health before they can be sold in California. These evaluations include potential human health impacts reviews; pesticide efficacy studies; toxicity and exposure data; available literature; and monitoring data. To demonstrate that DPR conducts state-specific research rather than exceeding EPA’s labeling requirements, DPR uses the aforementioned data to model a given pesticide’s expected behaviors once it is applied in California.
Even after DPR’s initial pesticide approval, the pesticide is subject to ongoing evaluation under which DPR assesses new information on the pesticide’s potential risks and impacts on people and the environment. If DPR finds new information during this process indicating that a pre-approved DPR pesticide currently has significant human health risks specific to California, DPR may place additional restrictions on the pesticide or cancel its state registration, halting the pesticide’s state sales and uses. Despite these stringent public health standards, DPR allows the manufacturers to alter the labels of their pesticides with significant adverse but mitigable effects to increase the pesticides’ registration eligibility. For example, a manufacturer’s altered pesticide label may include reducing the application amount. Accordingly, California proactively regulates labels before deciding whether to register pesticides for state use to supplement EPA approval.
New York’s Capacity to Evade Preemption
Given New York’s Model Law’s passive stance to pesticide labeling requirements, there is legal scope for New York to better address public health concerns through amended labeling requirements or new requirements that are narrower than FIFRA’s labeling requirements. New York may do so by looking to California’s implementation of the Beyond Pesticides approach.
For example, since neither Sections 33-0303 nor 33-0707 of the New York Consolidated Code overtly prohibit pesticide labeling requirements besides those in FIFRA, there is legal scope for the commissioner to issue statewide pesticide labeling requirements based on the Beyond Pesticides approach. Such an approach may address statewide public health concerns more thoroughly than FIFRA’s address of those concerns, which could enhance New York’s public health.
Drafting Strategies
Despite FIFRA’s preemptive authority over state pesticide labeling requirements, New York may implement various strategies to draft its state pesticide disclosure laws to evade preemption. One strategy that New York could implement is clarifying the phrase “deems it necessary” based on the commissioner’s discretion to request a pesticide’s complete formula. Although this phrase seems to grant the state significant authority, if the commissioner is not concerned about enhancing public health measures beyond their current statewide level or not keen on risking preemption, the phrase may not result in any state public health measures. A related strategy is for New York to draft requirements that demonstrate state-specific concerns to avoid triggering FIFRA preemption.
Accordingly, New York may draft a pesticide law evaluation that requires state experts to evaluate data on how a given pesticide would behave under New York-specific conditions. If the experts’ evaluation determines that the pesticide does have potential risks or significant adverse effects, the New York State Department of Environmental Conservation (NYSDEC) may require the manufacturer to mitigate such risks and/or effects for state approval. Similarly, NYSDEC could retain the authority to deny a given pesticide’s registration based on unmitigable statewide impacts based on statewide evaluations. If New York prefers a broader approach, it may draft a labeling requirement for all “unlawful trade practices” similar to the Beyond Pesticides’ state consumer protection law without mentioning negligent failure-to-warn language.
The Likelihood of Withstanding Legal Challenge
Although New York may not wish to amend or supplement its current pesticide labeling laws, doing so may hold EPA accountable for its scant public health considerations while approving pesticides for sale. Furthermore, by implementing the drafting measures, New York may evade preemption. However, the certainty of New York evading preemption is open to discussion, especially considering the current Trump administration’s stance on environmental and public health concerns.
1. High Likelihood of Withstanding Legal Challenge
The FIFRA Special Local Needs provision strengthens New York’s amended or new pesticide disclosure laws’ chances of legal success. This provision provides that states may apply for a special local need permit, which applies to existing or imminent pest problems within a state for which the state lead agency has reasonably determined that a federally registered pesticide product is unavailable. Under this provision, New York may choose to restrict or narrow a pesticide’s federally approved uses. Although this state authority relies on EPA approval of the state’s permit, the NYSDEC and other interested state experts may research a specific chemical within new pesticides to demonstrate at least one public health concern that is unique to New York, such as New York City soil contaminants. As such, New York may follow California’s lead in terms of state-specific data to narrow pesticides’ scope.
Even without applying for a special local need permit, New York is likely to withstand legal challenges. For example, if New York amends “deems it necessary” to something more specific to the statewide pesticides’ public health impacts, the amendment is likely to evade preemption by limiting the scope of health impacts to the state, as DPR has done. Specifically, New York may amend this language to “deems it necessary to the extent of New York State health concerns based on state-specific research.”
2. Low Likelihood of Withstanding Legal Challenge
However, New York may risk legal challenge under its new or amended disclosure laws for multiple reasons. One reason is that the pesticide research and identification process may be costly and tedious. In 2016, the process of testing and approving a pesticide for sale was estimated to cost over $280 million, spanning approximately 11 years of research. Since 2016, these factors may have increased due to economic downturns and federal funding cuts. Further, researching pesticides with state-specific public health impacts may be difficult considering that various states in the Northeast share soil qualities and pHs. Additionally, there is a FIFRA provision that states that EPA may suspend New York’s authority to register pesticides if EPA determines that New York is “incapable of exercising adequate controls.“ Although this provision provides EPA with discretion on labeling authority, EPA has not seemed to exercise this restraint against states so far.
However, if New York drafts a labeling requirement for all “unlawful trade practices” which spans beyond pesticides, New York will likely need to specify pesticide-based labeling requirements given pesticides’ potential health impacts compared to other products’ potentially less serious health impacts. On the one hand, the Beyond Pesticides’ petitioners’ claim that a pesticide label violated a state’s unlawful trade practices law was successful. However, FIFRA may ignore that success by claiming that Beyond Pesticides does not provide binding authority since it was decided by a U.S. District Court. Had the U.S. Supreme Court decided the case, New York would be more likely to evade preemption. However, New York may argue that, although not legal precedent, the reasoning in Beyond Pesticides builds on the landmark case of Bates, which was a U.S. Supreme Court decision and thus has significantly more legal weight than Beyond Pesticides. In doing so, New York may reduce the likelihood of its pesticide labeling law being preempted.
Conclusion
While some may assume that the federal pesticide labeling process prioritizes public health, the reality is that FIFRA does not hold EPA accountable for failing to prioritize public health measures past the bare minimum. To fill this legal gap, California has used its own statewide pesticide labeling laws for federally approved pesticide labels while evading FIFRA preemption. Comparatively, New York has been less adamant about drafting its labeling laws to address narrow, statewide public health requirements.
Perhaps New York believes that its stance on pesticide disclosure reduces the likelihood of legal challenges. After all, the current EPA may impose more stringent preemptive standards which may limit states’ ability to avoid preemption given the first Trump administration’s stance on pesticide bans. Additionally, the pending federal Uniformity in Agricultural Labeling Act aims to explicitly expand FIFRA’s preemptive scope to prohibit state pesticide warning label requirements in addition to or different from FIFRA’s requirements. However, New York should nonetheless creatively phrase such laws to fall within FIFRA labeling requirements based on the California and Beyond Pesticides approach. In doing so, New York may relentlessly advocate for public health notwithstanding federal opposition.