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United States Court of Appeals for the Eleventh Circuit Reverses U.S. District Court’s Ruling on Failure to Warn Claim in Glyphosate Case
On July 12, 2022, the U.S. Court of Appeals for the Eleventh Circuit (Court) issued an opinion in Carson v. Monsanto that reverses a ruling by the U.S. District Court for the Southern District of Georgia (District Court) that the Plaintiff’s failure to warn claim under Georgia law was preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Plaintiff alleged that Monsanto’s label for its product Roundup®, which contains the active ingredient glyphosate, did not have adequate warning of the “harmful nature of glyphosate under Georgia law.” The District Court ruled that FIFRA preempts Georgia law and Plaintiff’s failure to warn claim because the U.S. Environmental Protection Agency (EPA) classified glyphosate as not likely to be carcinogenic to humans and approved the Roundup label. Plaintiff appealed.
The Court found that the District Court erred in concluding that the Plaintiff’s failure to warn claim was preempted under FIFRA. In its Opinion, the Court stated that a common-law cause of action, such as the failure to warn claim under Georgia law, would be preempted “if two conditions are met: 1) the state requirement must be for ‘labeling or packaging’ under the language of the statute; and 2) the state requirement is ‘in addition to or different from’ requirements derived from FIFRA.” The Court found that EPA’s registration process “is not sufficiently formal to carry with it the force of law” and instead “at most creates a rebuttable presumption of compliance with FIFRA’s registration process and nothing more.” In addition, with regard to FIFRA’s labeling provisions, the Court found that the Georgia law failure to warn claim is not in addition to or different from FFIRA requirements. Instead, the Court states that the Georgia failure to warn claim “simply enforces the FIFRA cause of action, so it is not expressly preempted.”
The Court also responded to Monsanto’s argument providing several EPA documents indicating that it could not label Roundup as carcinogenic. These included various registration reviews and reregistration eligibility decisions regarding glyphosate products, an EPA paper written about the EPA Scientific Advisory Panel’s independent review of the effects of glyphosate, and “[v]arious papers involving scientific analysis where the EPA concluded that glyphosate did not cause cancer.” Monsanto additionally provided evidence regarding the August 2019 letter from EPA to glyphosate registrants that it would not permit label amendments to include warnings under California’s Proposition 65 that glyphosate is known to the State of California to cause cancer. In that letter, EPA stated that it would consider such language to be “false or misleading,” and thus would not approve of such language on any label and further that registrants were to remove such statements from any approved labels.
The Court found, however, that none of these documents had the “indicia of formality” necessary to meet their standard of review. The Court noted that none of the documents identified were the product of notice and comment rulemaking or formal adjudication, and they did not “‘bespeak the legislative type of activity that would naturally bind’ Monsanto.” The Court thus remanded this case back to the District Court for further proceedings on the failure to warn claim.
This case potentially places glyphosate registrants in the position of defending themselves for not warning about the potential carcinogenicity of glyphosate despite past EPA statements that any such warning would be considered a violation of FIFRA. Registrants should pay attention to the potential implications of this case, and others like it, particularly with regard to label claims that EPA has approved. More information on other glyphosate issues is available on our blog.
Regardless of the outcome of this decision, the long and tortured history of the FIFRA preemption issue was expected to, and certainly will, continue. For many years, the debate over the implications of the FIFRA requirement that the EPA label cannot have conflicting (“different from”) language that would be needed, as the argument goes, to comply with state requirements to provide adequately warnings. To a casual observer, the FIFRA label and EPA review should take care of imposing the necessary conditions to avoid harms since it is axiomatic that “the label is the law,” and, if label directions are followed, EPA expects there would be no “unreasonable adverse effects” caused by the pesticide application. But the case law has evolved over the years not only about the confines of FIFRA but also regarding other “failure to warn” cases involving label instructions and warnings approved by other federal agencies (e.g., the U.S. Food and Drug Administration). The result has been a continued series of cases where the courts, state and federal, have to determine where federal requirements end and freedom for state requirements are allowed.
In this case, the outcome was a disappointment to the registrant community but is unlikely to stop the flow of litigation on both sides of the preemption arguments. And the recent announcement in April 2022 by the Biden Administration EPA to reverse effectively the 2019 letter to California about FIFRA labels and California’s Proposition 65 requirements (Letter from California’s Office of Environmental Health Hazard Assessment on California Proposition 65 |to EPA) might further muddy the water of what a FIFRA label really does imply regarding state warnings, “right-to-know” requirements, and the like.
EPA Issues a Proposed Consent Decree Regarding Petition Concerning Treated Seeds and Treated Article Exemption
On July 6, 2022, the U.S. Environmental Protection Agency (EPA) released a proposed consent decree intended to resolve the case, Center for Food Safety, et al. v. U.S. Environmental Protection Agency (3:21-cv-09640-JSC), brought against EPA in the United States District Court for the Northern District of California alleging that EPA has unreasonably delayed responding to a petition for rulemaking relating to the regulatory exemption of pesticide treated seed. 87 Fed. Reg. 40233.
In accordance with EPA’s March 18, 2022, memorandum entitled “Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency,” EPA issued a Federal Register notice providing the proposed consent decree to resolve Center for Food Safety, et al. v. U.S. Environmental Protection Agency and providing a comment period. Comments on the proposed consent decree from persons who are not named as parties to the litigation in question are due on or before August 5, 2022. The public can submit comments at www.regulations.gov in Docket ID Number EPA-HQ-OGC-2022-0511.
This case was filed in connection with a petition (Petition) from the Center for Food Safety on or around April 26, 2017, requesting that EPA amend 40 C.F.R. Section 152.25(a) to exclude seeds for planting coated with systemic pesticides intended to kill pests of the plant, or, in the alternative, publish a formal agency interpretation in the Federal Register stating that 40 C.F.R. Section 152.25(a) does not apply to seeds for planting coated with systemic pesticides intended to kill pests of the plant, and enforce the numerous pesticide registration and labeling requirements for each separate crop seed product that is coated with a neonicotinoid or other systemic insecticidal chemical (2017 Petition Requests). EPA requested public comment on the 2017 Petition and received approximately 100 substantive comments. On December 14, 2021, Plaintiffs filed a Complaint alleging that EPA's failure to respond to the Petition constitutes an unreasonable delay under Section 706(1) of the Administrative Procedure Act (APA), 5 U.S.C. 706(1).
Under the proposed consent decree, EPA would, no later than September 30, 2022, either grant, deny, or grant in part and deny in part each of the Petition Requests. Court approval of this proposed consent decree would resolve all claims in this case except for the claim for the costs of litigation, including reasonable attorneys’ fees. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the APA or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Unless EPA or the Department of Justice determines that consent should be withdrawn, the terms of the proposed consent decree will be affirmed and entered with the court.
The treated article exemption under FIFRA, as EPA has applied it over the years, has been relevant mostly to uncontroversial products such as shower curtains (the pesticide applied to such a product is intended to preserve the shower curtain and not considered using a pesticide when one uses the shower curtain). Meanwhile, the practice of coating seeds with pesticides became more controversial in recent years about possible impacts on honeybees from fugitive dust from neonicotinoid-treated crop seeds. The concern is whether such non-target movement of pesticide residues (the dust) might be partly responsible for the apparent decline in honeybee populations. Critics view EPA’s policy about treated articles as not incorporating a sufficiently robust assessment of the impacts of this pesticide use pattern -- that is, the dust from the treated seeds and the systemic nature of neonicotinoid products used this way have impacts that EPA “ignores” due to the treated article exemption.
Interestingly, any residues remaining in the food produced using such products still must meet the Food Quality Protection Act (FQPA) safety standard of “reasonable certainty of no harm” from consuming the food -- but critics view the neonicotinoid products as causing unreasonable environmental impacts -- even if the finished food product is safe. In this view, critics of the current treated article exemption definition argue that the environmental impacts of neonicotinoid pesticides are left insufficiently regulated. One problem EPA faces, however, is that the treated article exemption applies to a much larger universe of pesticide applications than seed treatments, so changes to better evaluate the environmental impact of neonicotinoids could impact other products currently not viewed as controversial. This partly explains why EPA has delayed its response to the Petition as it considers how to respond. Changes to the current policy could result in many more products or applications needing EPA review, which would expand the pesticide registration universe at a time when EPA struggles to meet evaluation deadlines for currently registered products. EPA now will have to decide how to move forward on this issue, which will likely have more complex implications for products beyond neonicotinoid pesticides.
On July 1, 2022, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register announcing the availability of its progress report in meeting its performance measures and goals for pesticide reregistration during fiscal year (FY) 2019 (2019 Report). 87 Fed. Reg. 39517. Section 4(l) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires EPA to publish information about EPA’s annual achievements in this area. The 2019 Report discusses the completion of tolerance reassessment and describes the status of various regulatory activities associated with reregistration. The 2019 Report also provides the total number of products reregistered and products registered under the “fast-track” provisions of FIFRA. The report is available at EPA-HQ-OPP-2014-0125. Comments can be submitted on or before August 30, 2022.
EPA’s completed product reregistration actions totaled 161, short of EPA’s goal of 400 actions. The table below details the actions completed in FY 2019.
EPA also states that 4,081 products had product reregistration decisions pending at the end of FY 2019, compared to 4,193 products with product reregistration decisions pending at the end of FY 2018, and 4,370 products with product reregistration decisions pending at the end of FY 2017. Regarding changes in the universe of products in product reregistration, EPA states: “an increase or decrease can be due to fluctuations in numbers of products associated with product-specific Data Call-Ins (PDCIs).”
The number of applications for registration requiring expedited processing (i.e., “fast-track” applications) that EPA considered and approved has dropped slightly in 2019, with 2,574, 2,303, and 1,739 in 2017, 2018, and 2019, respectively.
All Things Chemical® Podcast Presents “Balancing Wildlife Protection and Responsible Pesticide Use -- A Conversation with EPA’s Jake Li
The latest episode of Bergeson & Campbell, P.C.’s (B&C®) All Things Chemical® podcast, “Balancing Wildlife Protection and Responsible Pesticide Use -- A Conversation with Jake Li,” features a conversation with Jake Li, Deputy Assistant Administrator for Pesticide Programs, Office of Chemical Safety and Pollution Prevention (OCSPP), U.S. Environmental Protection Agency (EPA). Conversation topics include what the Administration is doing to balance wildlife protection and responsible pesticide use and how the Endangered Species Act (ESA) Workplan is helping EPA’s Pesticide Program meet its ESA obligations.
DPR Announces Public Workshops on Development of Statewide Pesticide Application Notification System
On May 25, 2022, the California Department of Pesticide Regulation (DPR) announced that it will hold three public workshops to collect feedback on the next phase of design and development for DPR’s pesticide application notification system.
DPR states that the workshops will be hosted online via Zoom and facilitated by the UC Davis Center for Regional Change. Each workshop will follow the same format, including a brief overview of the proposed design for the statewide notification system and an opportunity for the public to provide input.
DPR began developing the statewide notification system in mid-2021, after the state budget allocated $10 million to DPR for system development. DPR designed the proposed system based in part on feedback from stakeholders during public focus groups and webinars. DPR states it will use the information collected during the forthcoming workshops for the next design phase of the statewide notification system.
DPR states on its website that “the tool will advance environmental justice and further protect public health by providing transparent and equitable access to information in advance of pesticide applications occurring near where people live, work or play.” DPR states further “That information will provide the public with the opportunity to make their own decisions about any additional precautions they may want to take to protect their health.”
The dates and times of the workshops are:
DPR states that registration is not required to attend. The workshops will be hosted online via Zoom. The Zoom link for each workshop is provided above on each date and time. Spanish interpretation will be provided at all workshops. A copy of materials presented during the workshops will be made available on DPR’s website following the workshops.
DPR states in its FAQs that it anticipates implementation for the system to occur in 2024. DPR states for more information and updates on statewide notification, please visit its website.
Registrants should monitor developments closely.
The U.S. Environmental Protection Agency (EPA) announced on May 26, 2022, that on Monday, May 23, 2022, it has activated its Emerging Viral Pathogen (EVP) Guidance for Antimicrobial Pesticides (Guidance) in response to monkeypox, which had been considered to be a rare disease caused by infection with the monkeypox virus. According to the U.S. Centers for Disease Control and Prevention (CDC), monkeypox was first discovered in 1958 when two outbreaks of a pox-like disease occurred in colonies of monkeys kept for research, hence the name “monkeypox.” The first human case of monkeypox was recorded in 1970 in the Democratic Republic of Congo during a period of intensified effort to eliminate smallpox. CDC states that its scientists are tracking multiple cases of monkeypox that have been reported in several countries that do not normally report monkeypox, including the United States.
EPA developed its Guidance in 2016 to address emerging pathogens. Under this Guidance, EPA provides pesticide registrants with a voluntary “two-stage process to enable use of certain EPA-registered disinfectant products against emerging viral pathogens not identified on the product label.” These pathogens may not be identified on a label because the occurrence of EVPs is less common and predictable than that of established pathogens and because the pathogens are often unavailable commercially and standard methods for laboratory testing may not exist. EPA’s intent is for the Guidance to “expedite the process for registrants to provide useful information to the public” regarding products that may be effective against EVPs associated with certain human or animal disease outbreaks. Registrants with a pre-qualified EVP designation can include an efficacy statement in technical literature distributed to health care facilities, physicians, nurses, public health officials, non-label-related websites, consumer information services, and social media sites. Additional information on the EVP Guidance is available here and here.
The monkeypox virus belongs to the Orthopoxvirus genus in the family Poxviridae and is an enveloped virus, meaning it is one of the easiest to kill with the appropriate disinfectant product. EPA recently developed the new List Q: Disinfectants for Emerging Viral Pathogens (EVPs). Monkeypox virus is a Tier I (enveloped virus); thus, when disinfectants damage their lipid envelope, the virus is no longer infectious. EPA’s List Q currently has 422 disinfectant products for use on Tier 1 viruses.
The EVP Policy for the monkeypox virus expires in May 2023.
Information on the monkeypox virus is available on CDC’s website.
EPA Publishes Notice Concerning Court-Ordered Stay of Effectiveness for Pesticide Application Exclusion Zone Provision of the Agricultural Worker Protection Standard
As reported in our November 2, 2020, blog item, on October 30, 2020, the U.S. Environmental Protection Agency (EPA) issued a final rule on the Agricultural Worker Protection Standard (WPS) regulation that revises the requirements on the pesticide application exclusion zone (AEZ), defined as an “area surrounding the point(s) of pesticide discharge from the application equipment that must generally be free of all persons during pesticide applications.” The final AEZ requirements were scheduled to go into effect on December 29, 2020, but on December 28, 2020, the U.S. District Court for the Southern District of New York issued an order in the case of State of New York et al. v. EPA that resulted in a stay of the requirements. Subsequent orders have extended this stay of the effectiveness.
EPA published a May 16, 2022, Federal Register notice stating that as of February 15, 2022, the effectiveness of the WPS final rule is stayed by court order until August 22, 2022. 87 Fed. Reg. 29673. According to the notice, EPA intends to publish another document in the Federal Register to address the status of the 2020 final rule if the stay of effectiveness expires or is lifted, but EPA “does not intend to publish additional Federal Register documents to announce any additional court orders entered to further stay the effectiveness of the 2020 final rule.”
The U.S. Environmental Protection Agency (EPA) announced on May 11, 2022, that it is launching a new, modern Design for the Environment (DfE) logo that will appear on antimicrobial products like disinfectants and sanitizers within the next year. EPA intends the DfE logo to help consumers and commercial buyers identify antimicrobial products that meet the health and safety standards of the typical pesticide registration process required by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as well as other rigorous criteria required by EPA. To qualify for the DfE logo, every ingredient in a product must meet a rigorous set of chemical and toxicological standards.
EPA states that it has seen a surge of engagement in the last few years from consumers, schools, and other organizations who want to know more about how products affect their health and the environment. According to EPA, the updated logo should make DfE-certified products easier for purchasers to find, which in turn will encourage companies to seek certification for their products.
DfE products meet criteria that evaluate human health and environmental effects, product performance, packaging, and ingredients. According to EPA, the requirements are intended to:
EPA notes that it does not consider the logo to be an endorsement. Instead, similar to describing a pesticide as “EPA-registered” because EPA found it meets the FIFRA registration standard, the DfE logo indicates that EPA reviewed the product and that the product meets the FIFRA registration standard, as well as the standards for the DfE program. DfE certification provides an opportunity for companies to work toward their sustainability goals. EPA provides information on how registrants can obtain DfE certification.
EPA Requests Comments on Aquatic Toxicity Data of Chitosan Salts -- Proposal to Add Chitosan to the Minimum Risk Pesticide Active Ingredient List
On May 6, 2022, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register announcing the availability of, and requesting comments on, data related to aquatic toxicity of chitosan salts. 87 Fed. Reg. 27059. Specifically, EPA is seeking comments on the following two aquatic toxicity reports submitted by Tidal Vision Products, LLC (Tidal Vision), the company that submitted a petition to EPA on October 10, 2018, requesting that EPA add chitosan to the list of active ingredients eligible for EPA’s minimum risk pesticide exemption under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 25(b):
EPA is seeking input on how these reports may be used by EPA in its assessment of aquatic toxicity of chitosan and its salts. EPA states “chitosan may form as a salt (e.g., acetate, lactate, hydrochloride, and salicylate) when it is solubilized in acids for end use product formulation and subsequently applied in the environment” and the new information submitted by Tidal Vision pertains to these salts. Comments on the aquatic toxicity reports are due on or before June 6, 2022, in Docket EPA-HQ-OPP-2019-0701.
As background, EPA on August 20, 2020, announced that it was seeking to add chitosan to the list of active ingredients allowed in minimum risk pesticides that are exempt from pesticide registration requirements and was providing to the United States Department of Agriculture (USDA) for review a draft regulatory document titled ‘‘Pesticides; Addition of Chitosan to the List of Active Ingredients Allowed in Exempted Minimum Risk Pesticides Products.” A minimum risk product must meet six specific conditions to be exempt from pesticide registration. One of those conditions is that the active ingredient in the minimum risk pesticide be one that is listed specifically by EPA. If EPA adds chitosan to the list of minimum risk pesticide active ingredients, pesticide products containing chitosan could qualify as minimum risk pesticides provided the other conditions also are satisfied (e.g., using inert ingredients approved by EPA for use in minimum risk pesticides, not making any public health claims).
On November 2, 2020, EPA requested comments on the proposed rule to add chitosan to the list of active ingredients eligible for the exemption. In the May 6, 2022, Notice, EPA states that comments received on the proposed rule expressed concerns regarding derivatives of chitosan that are likely to be produced when chitosan is mixed with certain acids and on the potential hazard for aquatic organisms exposed to chitosan salts. Because of the concerns raised, EPA now is requesting comments on the two aquatic toxicity reports that pertain to these salts.
EPA continues to remain focused on listing this specific substance rather than address other issues related to minimum risk pesticides that have been raised by industry to EPA over many years. There is, for example, a petition filed in 2006 by the Consumer Specialty Products Association (CSPA) requesting that EPA modify the minimum risk pesticide regulations to exclude products claiming to control public health pests from the Section 25(b) exemption. Comments submitted in response to the November 2, 2020, proposed rule raise additional concerns, including but not limited to the fact that the vast majority of states now require registration of minimum risk pesticides, thus shifting the burden away from EPA with costly and potential inconsistent results.
Though this EPA list is called “minimum risk,” it more accurately could be described as -- “so safe no one could, or at least should, have any concern about toxicity.” There is long-standing reluctance for EPA to call any pesticide whatsoever as “safe” for various reasons, even to the point of an outright prohibition on using the word “safe” on registered labels. (This is the clever distinction that “minimum risk” pesticides do meet the FIFRA definition of a pesticide, but the Section 25(b) designation allows that the label not be subject to EPA review and registration of the label.)
This issue of possible risks from adding chitosan to the Section 25(b) list in light of the studies EPA seeks comment on appears to allow EPA to back away from its intended designation as minimum risk or to have the public comment reaffirm EPA’s assessment that chitosan’s safety profile is sufficiently beyond reproach to align with the other members of this category. There are many other pesticides considered of very low risk but not so low as to have made the Section 25(b) list until now. That there is a hint of debate about possible toxicity could signal that future additions to the list are being contemplated to encourage more “minimum risk” product development. Or more simply, it may signal EPA’s reaction to the comments received has triggered some reconsideration of how “minimum” any minimum risk needs to be to qualify for the Section 25(b) list.
EPA Research Team Develops Framework to Determine What Products to Classify and Evaluate as Nanopesticides
According to a May 9, 2022, news item published by the U.S. Environmental Protection Agency (EPA), “Advancing EPA’s Understanding of the Next Generation of Pesticides,” over the past decade, EPA “has received an increasing number of pesticide product applications that potentially contain nanomaterials.” The article notes that EPA’s current pesticide review method was not designed for nanomaterials, so each product is reviewed on a case-by-case basis. An EPA research team led by EPA scientist Dr. Chunming Su conducted an exhaustive search for patents and published literature related to nanopesticides to understand the state of the science. The item states that the team found and analyzed more than 36,000 patents and 500 peer-reviewed journal articles. The team established two general categories of nanopesticides to help inform EPA’s regulatory reviews: products with mostly metal-based nanomaterials as the active ingredient, like nanosilver and nanocopper oxide/hydroxide; and products that encapsulate and carry the active ingredient using nanomaterials (mostly carbon based) like graphene and carbon nanotubes. According to the item, the research team also developed a review framework “that includes a simple decision tree to determine what products should be classified and evaluated as a nanopesticide.” Products determined to contain nanomaterials are subject to additional assessment or data needs from the manufacturer. Dr. Andrew Byro of EPA’s Office of Pesticide Programs (OPP) states that the framework “represents a major steppingstone in the development of a method for identification of nanomaterials.” EPA will use this framework as a platform to help inform its data needs and future determinations regarding the evaluation of nanomaterials in antimicrobial pesticides.
EPA’s research team collected their findings related to the physical and chemical properties and efficacy of nanopesticides in a peer-reviewed journal article in Nature Nanotechnology, “Nano-enabled pesticides for sustainable agriculture and global food security.” According to EPA’s news item, the team “found that nano-enabled pesticides adhere better to plant surfaces and have a reduced impact on non-target organisms. Nanopesticides may also enhance plant resilience against stressors from heat or drought.” EPA states that these benefits “could lead to higher crop yield and provide more agricultural resilience to address climate change and weather extremes.” EPA notes that the research team’s findings “also highlight the data gaps and the need for additional research on potential adverse impacts of nanopesticides.”