The EPA is accepting comments on a petition submitted by the attorneys general of 11 states, including Iowa, to modify labeling requirements for pesticides. If adopted, it would remove a state's right encoded in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that allows a state to require more stringent warning labels on pesticides than what is federally approved. Like the Cancer Gag Act, adoption of the petition would also provide legal immunity to a chemical company by allowing an EPA-approved label to be considered sufficient warning.

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Let's stop this petition in its tracks. The following is a letter developed by Beyond Pesticides. Feel free to copy this letter and submit it as a comment or write your own. Submit your comments here. The EPA is accepting public comments until 11:59 ET on Thursday, February 20.

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LETTER TO THE EPA:

 

Please deny the attorneys general (AGs) petition, which misrepresents the authority and responsibility of state governments in their role to protect public health and safety.

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While the petition targets California Prop 65 warnings on glyphosate products, it goes much further in restricting the authority of states to restrict pesticides under FIFRA. In 2019, EPA told California’s Office of Environmental Health Hazard Assessment (OEHHA) that its label language for glyphosate violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Subsequently, OEHHA explained to EPA:

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Proposition 65 is a right-to-know law that requires businesses to provide a clear and reasonable warning prior to exposing people in California to chemicals that have been listed as carcinogens or reproductive toxins. The warnings provide an important public health benefit by allowing individuals to make informed decisions about their exposures to listed chemicals.

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Proposition 65 requires the listing “at a minimum” of chemicals that the International Agency for Research on Cancer (IARC) places in certain carcinogenicity classifications. In 2015, IARC placed glyphosate in a classification that mandated California’s listing of the chemical under Proposition 65. Because glyphosate is now listed as a carcinogen under Proposition 65, Proposition 65 requires businesses to provide warnings if their products that contain glyphosate would result in exposures, unless those exposures fall below a certain level.

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California OEHHA asked EPA whether language citing IARC's classification would be allowed, and in 2022, EPA said that with that specificity, it would. While California allows several options for communicating the Prop 65 warnings, historically, the label has been used to convey warnings about pesticides. In jury verdicts awarding damages to those suffering from cancer as a result of exposure to glyphosate, courts have pointed to the failure to warn users of the hazards. A Pesticides and You article (2005) by H. Bishop Dansby explains the U.S.  Supreme Court decision on “failure to warn” in Bates v. Dow Agrosciences (U.S. Supreme Court, No. 03-388, 2005):

 

“Manufacturers have a legal duty to provide adequate warnings about the potential risks associated with their products, including pesticides. This duty arises from the recognition that manufacturers possess knowledge about the potential dangers of their products and have a responsibility to inform consumers about these risks.”

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With regard to pesticide regulation, FIFRA clearly states, “A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this Act,” which is followed by a clause requiring uniformity of labeling. By focusing on the uniformity of labels, the AG petition would prohibit the state from requiring product labels to warn users of potential hazards, thus subjecting users to greater risk of illness.

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States and local governments often take creative measures to protect people, land, and water from hazards. States and local governments believe in their right to protect their residents from poisoning and contamination, a right that has been upheld by the U.S. Supreme Court. The only conclusion that can be derived from the petition is that the AGs do not care if the people, including farmers, of their states are harmed by pesticides, and they should not be able to seek compensation if they suffer adverse effects due to a failure to warn on a pesticide label. The courts have upheld a state’s and manufacturer’s “duty to warn” of pesticide hazards as a right and responsibility that is not at odds with “misbranding” regulations under federal pesticide law.

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Please uphold the rights of states and deny the AG petition.

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Thank you.

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