A Look Ahead at FIFRA in 2023
Several developments to watch under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are summarized below.
FIFRA Section 3(g)(1)(A)(iii) requires that EPA perform 15-year reviews of registered pesticides, including by October 1, 2022, for the more than 700 pesticides registered prior to amendments that took effect in 2006. This large swath of reviews will extend into 2023 and will consider the safety and efficacy of the pesticides through the process enumerated in 40 C.F.R. § 155.40. EPA is also engaged in evaluating the potential effects of registered pesticides on endangered and threatened species (ETS), as well as the potential effects of per- and polyfluoroalkyl substances (PFAS) in pesticides, with a specific EPA 2023 fiscal year budget allocation of $4.9 million directed to the former and a $126 million allocation to PFAS impact studies in general.
Consistent with annual federal civil monetary penalty inflation adjustments, base civil statutory monetary penalties assessed under FIFRA on or after January 6, 2023, will increase to $23,494 in 2023 (7 U.S.C. § 136l((a)(1)). Since the advent of the Covid-19 pandemic, EPA has taken a more active role in the enforcement of FIFRA against manufacturers, importers, and retailers of unregistered pesticides, particularly those that claim antimicrobial (or virus-fighting) qualities. The high base civil penalties associated with these potential violations can result in surprisingly lucrative civil penalty settlements with the agency. While the pandemic is waning, this more aggressive enforcement approach is likely to continue into 2023.
Preemption of State Tort Claims
A push for the Supreme Court’s consideration of the federal preemption defense to toxic tort failure to warn lawsuits under FIFRA will continue. The argument was well articulated in the certiorari petition filed in 2021 by Monsanto Company. Monsanto v. Hardeman, 142 S.Ct. 2834 (2022) (cert. denied). Monsanto argued that because FIFRA prohibits states from establishing independent pesticide labeling requirements, and pesticide manufacturers are bound to adhere to their EPA-approved labels, state tort failure to warn lawsuits should be preempted. The Ninth Circuit rejected the argument, before the Supreme Court denied certiorari. Hardeman v. Monsanto Co., 997 F.3d 941 (9th Cir. 2021). In 2023, defendants are expected to continue to seek review of this important issue in other cases.