A Big “HELL NO” to the Agricultural Labeling Uniformity Act | Cape Law Firm

A Big "HELL NO" to the Agricultural Labeling Uniformity Act | Cape Law Firm

The Agricultural Labeling Uniformity Act will Screw Farmers and Ranchers (Part 2)

Last week we took a deep dive into the Agricultural Labeling Uniformity Act (H.R. 4288) and explained why this Bill is terrible for American agriculture. This week we’re taking a closer look at some of the scare tactics the industry is using to muster support for the Bill.

Falsehoods and Scare Tactics Used by Pesticide Manufacturers & Proponents of the Bill

Falsehood – EPA’s labeling decision means a label is in compliance “with all applicable laws.”

  • The EPA has never confirmed that a label is fully compliant with all applicable laws. Congress made this clear over 50 years ago when it passed the modern version of FIFRA. Not only does EPA’s review not cover all applicable laws, for decades the EPA has not even applied mandatory laws in its review. A notable example is EPA’s duty to review pesticide registrations for compliance with the Endangered Species Act. In 2022, the Agency admitted that “[f]or most of EPA’s history, the Agency has met these duties for less than five percent of its FIFRA decisions.” In short, the industry’s claims of full legal compliance is grossly false and misleading.

Scare Tactic – Without H.R. 4288 the United States’ food security will suffer, and more Americans will go hungry.

  • The United States annually produces far more food than it can ever consume domestically, and for decades it has consistently been the world’s largest food exporter. The U.S. has such an excess of agricultural output that it must export food to sustain prices and revenues to farmers. Less than half of the two of the largest crops produced in the U.S., yellow dent corn and soybeans, are used for food. The majority of those crops are used for industrial oils, fuels, and animal feed. The ability of the United States to produce ample food for itself and other countries will not suffer in the absence of immunity for pesticide manufacturers.

Scare Tactic – Farmers will lose pesticide tools unless pesticide labels are protected by federal law.

  • Agricultural pesticides are rarely, if ever, canceled or taken off the market. And they certainly aren’t removed from the agricultural toolbox due to inaccurate labeling. FIFRA already provides protection to ensure that pesticide labels are uniformly structured to protect human health and the environment.
  • The reality is that consolidation in the pesticide industry has allowed manufacturers to become complacent and stop developing newer, safer, more effective pesticide tools. Instead of spending money on research and development, manufacturers are simply selling the same products which are becoming worn out. Indeed, no new modes of action for herbicides have been released in over 30 years.

Falsehood – EPA’s labeling decisions are based on the “best available science.”

  • EPA does not conduct scientific testing, but instead, reviews the “science” used by manufacturers. The Agency does not know whether the “science” that is submitted by manufacturers is the “best available,” or is merely “generally acceptable.”

Scare Tactic – Politics will trump science in determining which pesticides could be used.

  • Actually, it is the pesticide manufacturers that will gain even greater political influence over the EPA through Rep. Johnson’s Bill. By making EPA’s pesticide label approvals conclusive and eliminating farmers’ and ranchers’ ability to question the adequacy of a label, pesticide approvals will become acutely vulnerable to politics. Again, EPA’s handling of dicamba demonstrates the enormous political influence that manufacturers already wield over the pesticide approval process. The Office of Inspector General of the EPA found extensive political meddling and inappropriate actions by senior Agency officials in the 2018 dicamba registrations. If H.R. 4288 is passed, pesticide manufacturers will only need to exert their considerable political influence on a mere handful of EPA officials to obtain the approvals they want.

Scare Tactic – An unworkable patchwork of regulatory requirements will emerge without H.R. 4288.

  • The reality is that manufacturers themselves regularly create numerous versions of product labels containing different directions, instructions, and warnings for the exact same pesticide. Some of these labels are very specific to certain States, or even counties within a State. One example is sulfosulfuron, a herbicide that was approved with three different labels for three different uses, all containing different directions, instructions, and warnings. Likewise, manufacturers often issue additional “Use Recommendations” under Section 2(ee) of FIFRA which are specialized directions for particular geographies or uses. These so-called “Use Recommendations” are not found in the product label and are never reviewed or approved by the EPA. In short, the need for increased uniformity in pesticide labels is undermined by the manufacturers’ actual practices and is greatly overblown.
  • Agriculture is, by its very nature, local and must adjust to the growing conditions, soils, and climate of the area. There is no one-size-fits-all tool that will meet the requirements of farmers and ranchers in different regions of the country. Thus, a pesticide that works well for one region may be ill-suited for another. This is why Congress saw fit to require a continuing duty for manufacturers to report adverse effects of their products after they were approved for release in the marketplace. However, H.R. 4288 will undermine Congress’ original intent to allow users to inform the marketplace and the EPA of the impact of pesticides in their unique geographies and production environments.

How does this Bill harm farmers and ranchers?

This Bill will enshrine pesticide labels with unassailable federal protection under FIFRA, thereby completely destroying any means for a farmer or rancher to obtain a remedy for damages caused by pesticides.

  • There is no federal remedy for pesticides that cause harm or damage. Since FIFRA was overhauled in 1972, the only recourse for harms caused by pesticides has been under State law. This is because federal law fails to provide a remedy to farmers and ranchers that are damaged by pesticides. Thus, the only avenue for a farmer or rancher that is injured by a pesticide lies with States’ ability to provide relief.

The Supreme Court’s 2015 seminal decision in Bates v. Dow Agrosciences LLC provides an excellent example of how pesticide manufacturers will use H.R. 4288 against farmers and ranchers:

In Bates, a group of Texas peanut growers sued Dow after their peanut crops were severely damaged by Dow’s “Strongarm” herbicide. Although Strongarm’s label stated, “Use of Strongarm is recommended in all areas where peanuts are grown,” the herbicide stunted peanut plants grown in soils with pH levels over 7.2. After the damage to the Texas peanut crops, Dow obtained EPA’s approval for a supplemental label with a new warning solely for New Mexico, Oklahoma, and Texas: “Do not apply Strongarm to soils with a pH of 7.2 or greater.” Despite this label change, Dow sought dismissal of the Texas farmers’ claims, arguing that FIFRA preempted all of the farmers’ claims. In other words, Dow argued that because EPA approved the label, it is beyond fault and cannot be questioned. This argument was successful in the district court and the court of appeals. Fortunately for the farmers, the Supreme Court reversed these lower decisions, holding that FIFRA did not preempt their state law labeling claims, particularly those claims that sought to enforce FIFRA’s labeling requirements.

Under Rep. Johnson’s Bill, the Texas peanut growers would be kicked out of court and left with devastating uninsured crop losses. In other words, H.R. 4288 provides pesticide manufacturers with complete immunity, even when the manufacturer has failed to comply with the EPA’s requirements under FIFRA.

The bottom line is that H.R. 4288 is not about protecting the tools of farmers and ranchers – it is solely about giving federal immunity to the pesticide industry. Passage of this Bill will take away a very helpful tool that America’s farmers and ranchers currently have in their toolbox – the ability to ensure that agricultural pesticides will actually work on their land. I urge you not to be misled by the industry’s misleading scare tactics and political double-talk. Protect American agriculture by asking Congress to vote “NO” on H.R. 4288.

For citations to resources and authorities that support our position and the points we’ve made about this terrible Bill, please see our letter to Sen. John Boozman, the Ranking Member of the Senate Committee on Agriculture, Nutrition, and Forestry by clicking HERE.

Too Much Farm Data, Too Little Time

The Ag tech wave that began over a decade ago has yet to deliver the much-hyped benefits for most farmers according to a recent article in Wall Street Journal. Numerous companies and start-ups have entered the market for technology-driven, precision agricultural tools including software, remote sensing, and computerized hardware, unleashing a flood of farm data. But many farmers have more data than they know what to do with, and they struggle to use it to make decisions. An even larger number of farmers are simply ignoring tech tools, finding them too complicated, too expensive, or simply too much. Further complicating the issue are the many different data tools on different platforms that are unable to effectively integrate in a way that provides meaningful results.
For those who have adopted precision farming technologies, and been able to marshal the data, the benefits can be substantial. According to an example from USDA, winter wheat growers utilizing digital soil maps had 49% higher yields than those who didn’t. Thus, these technology tools could provide a significant boost to productivity, if farmers can just figure out how to use them.

Latest Posts