Ag & Food Law Daily Update: October 1, 2021 - National Agricultural Law Center

A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.

JUDICIAL: FIFRA, Supremacy Clause, Preemption

In SOUTHERN AGRICULTURAL INSECTICIDES, INC. v. DIRECTOR ALEXIS TAYLOR, Oregon Dep’t of Agric., et al., No. 6:20-CV-00922-AA, 2021 WL 4391557 (D. Or. Sept. 24, 2021), the court decided whether orders from the Oregon Department of Agriculture (“ODA”) were preempted by the Federal Insecticide Fungicide and Rodenticide Act (“FIFRA”). Southern Agricultural Insecticides (“Plaintiffs”) sells an insecticide product called Triple Action Neem Oil (“TANO”) which is regulated by the United States Environmental Protection Agency under FIFRA and by ODA under Oregon’s Pesticide Control Act (“OPCA”). In February 2019, ODA issued a Stop Sale, Use, or Removal Order after they found that plaintiff’s TANO product revealed trace amounts of substances that were not listed as active ingredients on TANO’s label. Additionally, ODA found that the specific lot of TANO had been misbranded as organic because the substances found were not permitted in organic products and issued a Notice of Violation. ODA then proposed an $814 penalty for the misbranding of TANO.

Plaintiffs then brought an action that alleged that ODA’s Stop Sale, Use, or Removal Order and the subsequent Notice of Violation (“Final Orders”) violated the Supremacy Clause of the United States Constitution because they were preempted by FIFRA. The court determined that two conditions must be met in order for FIFRA to expressly preempt a state requirement in this case. One was that it “must be a requirement for labeling or packaging” and the second was that it “must impose a labeling or package requirement in addition to or different from those required under FIFRA.” The court concluded that because the OPCA’s adulteration provision was not a labeling or packaging requirement and because ODA’s application of the OPCA’s misbranding provision was fully consistent with FIFRA’s misbranding provisions and EPA’s misbranding regulations, ODA’s Final Orders were not expressly preempted by FIFRA.

Additionally, the court analyzed whether the Final Orders were impliedly preempted by FIFRA. State law can be impliedly preempted when “federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field” or when “state law conflicts with federal law.” For this issue, the court concluded that because FIFRA’s provisions specifically allow for state regulation of pesticides, Congress left room for states to regulate and therefore it was not preempted.

Finally, the court assessed whether the Final Orders were preempted due to irreconcilable conflicts with federal law. The court held that it would not be impossible for plaintiffs to comply with the Final Orders as it did not impose any labeling duty upon them, the only requirement was stopping the sale of the misbranded TANO in Oregon and the payment of a civil penalty. The court granted summary judgment for the defendants.