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Lawsuit Attempts to Kickstart EPA Inerts Disclosures

March 2014

Earlier this month, the Center for Environmental Health, Beyond Pesticides, and Physicians for Social Responsibility sued the U.S. Environmental Protection Agency (EPA) in California to force the Agency to speed up rules requiring the listing of some or all inert ingredients on pesticide labels.  As often is the case, Earthjustice is representing the plaintiffs.  The complaint asks the court to order EPA to issue a proposed rule within 60 days, and a final rule within 180 days thereafter.  Ctr. for Envtl. Health, et al v. McCarthy, No. 14-1013 (N.D. Cal., filed Mar. 5, 2015).

EPA has long required that pesticide labels list the “active ingredients”—that is, those chemicals with approved pesticidal properties.  For the past decade, however, environmental and public health advocates have pushed EPA to require pesticide manufacturers to disclose the full list of “inert” ingredients contained in pesticide products, in addition to the active ingredients.  Inert ingredients include dilutents (e.g., water or solvents), oils, stabilizers, emulsifiers, and other non-pesticide ingredients.  But these ingredients are only required to be disclosed using a single “inert ingredients” listing.  Thus a label might state:  “2% XYZ Pesticide, 98% Inert Ingredients.”  In part, this is because Congress and EPA recognize that the exact proportions of inert ingredients in pesticide formulations are highly prized commercial secrets.

Public health advocates argue that some inert ingredients may pose health risks to consumers and users who come into contact with them, even if they have no pesticidal properties.  They posit that the term “inert” misleads consumers to incorrectly believe that inert ingredients are harmless or non-toxic.  They then argue that requiring all inert ingredients to be disclosed on the label would provide consumers with information they need to protect themselves from harm.

EPA has sporadically appeared, to agree with this position.  For example, in 1987, EPA required a limited list of certain toxic inert ingredients to be listed on labels.  Health advocates argue that the 1987 rule led manufacturers to remove many of those ingredients from their products.  Further, a 1997 EPA guidance document—now heavily cited by rule advocates—stated that “many consumers have a misleading impression of the term ‘inert ingredient', believing it to indicate water or other harmless ingredients.”  EPA, Pesticide Registration Notice 97-6, (Nov. 1, 1997).

The question of whether to require full disclosure was first formally put to EPA in 2006 in two petitions filed by public health advocates and a group of state attorneys general.  Those petitions requested that EPA require the disclosure of a list of 350 ingredients the petitions believed to be hazardous.

In 2009, EPA partially granted the petitions and opened a rulemaking docket to solicit input from the public and other interested parties.  EPA's “Advance Notice of Proposed Rulemaking” stated that “EPA believes that the lack of information available to consumers and users about the inert ingredients in pesticide products results in a market failure that causes pesticide products to contain inert ingredients that are more hazardous than is efficient.”  74. Fed. Reg. 68,215, 68,218 (Dec. 23, 2009).  EPA went on to suggest two potential options for disclosure.  Option 1 would mandate disclosure of the identity only of potentially hazardous ingredients.  Option 2 would promote or mandate disclosure of most or all inert ingredient identities, regardless of hazard.

EPA's proposal was met with broad opposition from industry.  Industry commenters noted that EPA had failed to define “hazardous inert ingredient,” failed to support the allegation that inert ingredients were in fact hazardous, and failed to substantiate any benefit that disclosure would provide.  Commenters pointed out that EPA already reviews the ingredients of pesticides, both active and inert, and that any EPA concerns regarding the safety of inert ingredients are more properly raised during that review.

Several commenters also questioned whether EPA even has the legal authority to mandate the disclosure of non-hazardous ingredients that have no pesticidal activity.  The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) mandates that EPA regulate pesticides to avoid “unreasonable adverse effects to the environment,” and does not speak to educating consumers.  FIFRA §3(c)(5)(A).  Furthermore, FIFRA Section 10 contains explicit statutory protections for the confidential nature of each product's formulation, which could be negated by requiring a full disclosure of inert ingredients.

EPA accepted comments from the public through April 23, 2010.  EPA has not since released any details on its evaluation of the rule.  The Center for Environmental Health's Complaint alleges that EPA is dragging its feet and taking too long.

In fact, however, three years is not a particularly long time for an agency like EPA to take to develop rules for a completely new subject matter, and especially one with a potentially shaky statutory basis.  If it chooses to proceed, EPA must develop definitions for the self-contradictory term “hazardous inert ingredient,” determine how it will evaluate inert ingredients to determine whether or not they are “hazardous” and—perhaps most critically—develop a sound legal basis on which to regulate non-pesticidal ingredients.

In any event, it is unlikely that EPA could be in a position to issue a proposed rule within 60 days.  But, whatever the outcome of this suit, the pressure from public health advocates to mandate these disclosures will not go away.