A Look Ahead at FIFRA in 2022
In the wake of the Covid-19 pandemic, EPA and some environmental state agencies have targeted products claiming to have antimicrobial qualities as unregistered pesticides under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) and state pesticide laws. FIFRA broadly defines a “pesticide,” not based on its ingredients, but as any product that claims an ability to “prevent, destroy, repel, or mitigate” a “pest,” with “pest” defined to include microbial organisms like viruses, bacteria, mold, and fungi. While EPA’s enforcement has centered on products claiming without clear evidentiary support the ability to eradicate the Covid-19 virus, it has also looped in other products generally claiming antimicrobial properties that had previously avoided scrutiny.
Importers and retailers of international products from nations with more lax or different pesticide laws will continue to be surprised when certain products which would not meet a vernacular definition of “pesticide” are flagged for FIFRA enforcement. With the steep penalties available under FIFRA, compliance officers should continue to be wary of any product that appears to make an antimicrobial claim and is not accompanied by EPA and state pesticide registrations.
The U.S. Supreme Court is likely to hear in 2022 an argument that FIFRA preempts state law failure to warn pesticide tort claims. In Monsanto Company v. Hardeman, No. 21-241, Monsanto will argue that the EPA’s declination to require or accept a cancer warning on Monsanto’s Roundup® glyphosate pesticide products, effectively precludes its ability to provide the warning that the tort plaintiffs allege is necessary. The Ninth Circuit held in the underlying case that FIFRA does not preempt state law failure to warn tort claims. A decision in this case may come late in 2022 and may impact thousands of Roundup®-related tort actions proceeding through courts around the country, as well as serve as precedent for FIFRA pre-emption of state tort law claims in general.
Democratic federal lawmakers have proposed several ambitious bills that would amend FIFRA by banning entire classes of pesticide products, creating a private right of action against the EPA, and changing the way in which emergency, conditional, and cancelled pesticide registrations are treated. Despite the Democratically controlled government, the bills do not appear to be gaining traction. Extensive amendment of FIFRA is therefore unlikely in 2022.