The Agricultural Labeling Uniformity Act will Screw Farmers and Ranchers (Part 1)

Over the last few weeks we’ve been writing about the Agricultural Labeling Uniformity Act ​(H.R. 4288) and urging the Ag community to oppose the Bill. This week we’re taking a closer look at exactly what the Bill proposes and the reasons it will be a disaster for American agriculture.

What does the Ag Pesticide Labeling Act do?
​The Bill proposes to amend Section 24(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), a key provision that addresses pesticide labeling and packaging. Specifically, the Bill seeks to prohibit any State, or any court, from enforcing FIFRA’s pesticide labeling requirements or even reviewing any part of a pesticide label. In short, this Bill will make a pesticide manufacturer’s product label infallible regardless of whether it is true, accurate, or supported by any data. This stands in stark contrast to virtually all other products sold or distributed in the United States for which manufacturers are legally accountable for claims made on product labeling and packaging. This Bill also ignores reality and critical facts regarding the EPA’s registration process for pesticides, especially agricultural pesticides.

The Facts about FIFRA and EPA’s pesticide approval process
​The basic structure of registering, selling, and using pesticides in the United States has remained largely unchanged for over 50 years. Manufacturers submit a proposed product label and certain self-generated data to EPA to review. The EPA is required to register the pesticide unless its review of submitted materials indicates the pesticide will cause unreasonable adverse effects on humans or the environment. More importantly, EPA’s review is limited and hinges on the integrity of pesticide manufacturers and what they are willing to disclose to EPA.

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• EPA does not conduct scientific testing or generate scientific data on pesticides. “The EPA is a passive agency” which relies entirely on information and data voluntarily provided by pesticide manufacturers.

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• EPA does not independently verify the information and data provided by pesticide manufacturers. Rather, the Agency simply attempts to “determine if the testing methodology reportedly used is ‘acceptable’ in light of generally accepted scientific standards.”
  • This is important because the EPA depends entirely on the credibility and integrity of pesticide manufacturers to relay “truthful and accurate information” about the pesticides the manufacturer hopes to sell.
• EPA does not draft pesticide labels. The task of label drafting is left to pesticide manufacturers. While EPA may require certain label statements or clarifying language, the responsibility for drafting the label always falls on the manufacturer.
  • According to EPA and the pesticide industry, “the label is the law.” Thus, pesticide manufacturers literally write the laws that farmers and ranchers are required to understand and follow.
• EPA does not evaluate product performance or efficacy data for agricultural pesticides. The EPA stopped reviewing product performance data for agricultural pesticides over 40 years ago. Thus, in the Agency’s own words: “EPA’s approval of a pesticide label does not reflect any determination on the part of EPA that the pesticide will be efficacious or will not damage crops or cause other property damage.”
  • This means that EPA does not verify a whole host of claims on agricultural pesticide labels, including, among other things, (i) the product’s performance on labeled Use Sites, (ii) whether a product is safe for the application equipment mentioned in the label, (iii) whether rotational crop restrictions in a label are adequate to protect rotated crops, and (iv) whether the directions and warnings are adequate to prevent crop and property damage.
  • Even the EPA expects agricultural pesticides to be “regulated by the marketplace,” and that pesticide manufacturers should be “subject to damage suits by the user community if their products prove ineffective in actual use.”
• EPA’s registration of a pesticide does not mean that the product’s label is accurate, truthful, and non-misleading. EPA’s registration of a pesticide has never been a conclusive determination that the product label is wholly accurate and without flaw. Instead, registration is simply a rebuttable presumption that the product can be used safely and without unreasonable adverse effects on health and the environment.
  • One need look no further than the dicamba herbicide debacle for proof that EPA’s registration of a pesticide does not mean the label is accurate. In 2016 EPA initially approved and registered Monsanto’s proposed dicamba label for over-the-top application to dicamba-tolerant crops. Yet, that dicamba label has been significantly changed every year since 2016 in an effort to combat widespread damage from use of the herbicide. Notable label modifications include changing the classification from general use to Restricted Use, mandating dicamba-specific extra training for applicators, and requiring the use of “volatility reduction agents” in the tank mix. Obviously, the dicamba labels were flawed from the beginning, despite the EPA’s approval.

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.

Next week we’ll take a look at some of the scare tactics the industry is using to get support for the Bill. A copy of the Bill is available here.