July 1, 2022 – In 1947, Congress passed the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), that has governed the registration, distribution, sale, and use of pesticides inside the United States since President Harry S. Truman signed it in to law. It’s been updated and amended several times, including some big changes in 1972 that transferred enforcement away from the USDA and took it to the EPA. Since that time, EPA has enforced the standards under FIFRA, and a large portion of the law covers explicitly what information must and must not be on the label for a registered pesticide.
This made label announcements on pesticides big news, because once the EPA had signed off and the company had written a label in compliance with the law, that product was ready for sale nationwide, backed by the scientific conclusions of the federal government.
This began to change in 2017 when the state of California made the decision to list glyphosate, the active ingredient in Roundup herbicide, on their list of products known to cause cancer under that state’s Proposition 65. This move by the state was prompted by the International Agency for Research on Cancer’s finding that glyphosate caused tumors in lab rats. The IARC is an agency of the United Nations, and they had been researching glyphosate since 2015 and concluded that it is “probably carcinogenic in humans”, triggering the requirement under Prop 65. Passed in 1986, Prop 65 requires the state to maintain a list of carcinogens and requires products with those chemicals in them to carry a label that states “This product contains chemicals known to the state of California to cause cancer, birth defects, or other reproductive harm”.
This Prop 65 label was at the center of the Monsanto v. Hardeman case which the Supreme Court last week declined to hear. Which means the questions presented by the case persist, and the next several years could see more court cases arise from the uncertainty in labeling highlighted by this case. Monsanto, (now owned by Bayer), was taken to court several times over Roundup exposure allegedly leading to cases of non-Hodgkin’s Lymphoma, including by Edwin Hardeman in 2016. The jury sided with Hardeman, awarding him $80 million in damages (later reduced to $20 million) in part because Monsanto had not labeled glyphosate as a potential carcinogen.
Monsanto’s argument was the EPA has not recognized glyphosate as a carcinogen, so putting that label on glyphosate in California would result in a product being considered “mislabled” under FIFRA, and therefore ineligible for sale. The question to the court was effectively, who has the last word in determining the labels that go on these products, and how liable is a company if one approval body holds there is no cancer risk, and a state body holds that there is? Monsanto (now Bayer) had hoped SCOTUS render a clear decision limiting their liability in cancer cases on the basis that EPA has concluded (repeatedly and along with almost all other global health agencies) that glyphosate is not a carcinogen. By declining to take this case up; those liability and labeling questions will remain with us.
I think these are going to be very relevant questions in the years ahead, as environmental movements in different states push for differing regulations and labeling requirements than the EPA. Expect this issue to stay in the news and in the courts.
For additional insight on this case and several other cases touched on by the Supreme Court this summer, check out segment 2 of AOA from June 29, and my conversation with Todd Neeley of DTN: https://www.podbean.com/ew/pb-mg9ki-12608a2
- Mike Pearson
