No Private Cause of Action Under FIFRA

Radio talk show host, blogger and lawyer Hugh Hewitt recently urged Shopfloor to keep track of the regulatory burdens an aggressive EPA would be dreaming up under the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA). He provided legitimate grounds for concern, but, phew, FIFRA? That’s pretty arcane even to those of use who used to follow U.S.-Canada pesticide harmonization.

But here it is, in the courts. On May 25, a panel of the U.S. Circuit Court of Appeals for the Eighth Circuit, ruled that FIFRA did not create a private right of action, preventing a rush of new litigation against manufacturers. From the opinion in Douglas Voss v. Saint Martin Cooperative:

The Voss family, organic dairy farmers in rural Minnesota, commenced this damage action alleging that defendants’ unlawful application of chemical pesticides on a neighboring farm caused the chemicals to drift and to damage the Vosses and their property. Liberally construed, the pro se complaint alleged a federal cause of action for a labeling violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., and a state law cause of action for violation of
Minn. Stat. § 18B.07, subd. 2. The district court dismissed the entire complaint without prejudice for lack of subject matter jurisdiction because “it is well-settled that FIFRA does not provide for a private right of action.”

We agree that FIFRA does not provide a private right of action to farmers and others injured as a result of a manufacturer’s violation of FIFRA’s labeling requirements.

The district court should have dismissed the federal claim with prejudice, the appellate court wrote.

So there’s that at least.

As for the EPA, the agency is moving toward regulation of nanoparticles in pesticides under FIFRA, according to this Powerpoint presentation by William Jordan of the EPA’s Office of Pesticide Programs.

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