Petition Seeks Limits on State Pesticide Labeling Rules

Attorneys General from eleven states have petitioned US EPA to revise the requirements for labeling pesticides under FIFRA. The petitioners seek a change to the regulations that would prohibit states from imposing labeling standards for pesticides that are “inconsistent with EPA’s findings and conclusions” about a product’s health risks. 

EPA will accept public comments on the petition until March 24. 

The Federal FIFRA regulations require product labels to feature specific “hazard and precautionary statements for humans and domestic animals…” These labels must be of a certain size, and must feature text of a certain point size (See 40 CFR 156.60.).

Some States have enacted laws or regulations that go above and beyond what US EPA requires when it comes to labeling products containing certain chemicals. US EPA, who must review and approve of States' environmental programs on a regular basis, generally allows States to create unique rules as long as those rules as at least as stringent as the Federal regulations. States may not, however, require labels that create "false or misleading" statements.  

Proposition 65 in California 

In California, for example, state law dictates that: 
 

No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual...

California Health & Safety Code §25249.6

This provision was added to California State law by a public initiative called Proposition 65 or Prop 65 in November of 1986, also known as the Safe Drinking Water and Toxic Enforcement Act. 

To implement this law, California created a list of chemicals that are “known to the state to cause cancer or reproductive toxicity”. The State updates the list every year, and now lists more than 1,000 chemicals. The "Proposition 65 List" includes many chemicals found in pesticide or herbicide products, including glyphosate.

Companies whose products contain these substances must notify consumers about the potential hazards, and take steps to prevent releases of hazardous chemicals to drinking water. 

EPA has the authority to disapprove of labeling rules like the ones created by California's Proposition 65. In 2019, EPA made it clear in a letter that they would no longer approve California Proposition 65 warning labels for products that contain glyphosate (known as the active ingredient in Roundup products). 

Labeling the chemical as a potential carcinogen constituted a "false and misleading statement," the Agency said at the time. Citing several earlier evaluations of the chemical (including by California) that found no substantial risk to public health, EPA determined that it was "false and misleading" to declare otherwise on packaging. Glyphosate was added to the Proposition 65 list in 2017, after the substance was designated as a "likely carcinogen" by the International Agency for Research on Cancer.