Oregon Department of Agriculture

The Oregon Department of Agriculture has prevailed in a lawsuit over stopping the sale of a biopesticide contaminated with trace levels of conventional insecticides.

Federal law doesn’t pre-empt Oregon farm regulators from halting the sale of an organic biopesticide contaminated with conventional insecticides, a federal judge has ruled.

Last year, the Oregon Department of Agriculture was sued by Southern Agricultural Pesticides, a Florida company, for issuing a “stop sale” order against its “Triple Action Neem Oil” that tested positive for trace amounts of malathion, chlorpyrifos and permethrin.

The pesticide company claimed in its lawsuit that ODA was pre-empted from blocking the product’s distribution and ordering its removal on the grounds that it was adulterated and misbranded.

The agency’s order unlawfully imposed labeling requirements “in addition to or different from” the Federal Insectide Fungicide and Rodenticide Act, or FIFRA, which governs pesticides nationally, the complaint said.

U.S. District Judge Ann Aiken has now rejected the pesticide company’s arguments and granted ODA’s request to dismiss the lawsuit.

Although federal statutes have the constitutional power to expressly or implicitly pre-empt state laws, they’re not intended to entirely supplant them, according to legal precedent, she said.

The Oregon pesticide law that prohibits adulteration “does not impose any standards for packaging or labeling” and instead deals with “circumstances that render the contents unlawful,” so that statute isn’t expressly pre-empted, the judge said.

Similarly, the state’s pesticide law and FIFRA “impose parallel requirements” about misbranding and the ODA applied this regulation in a way that’s “fully consistent” with federal law, Aiken said.

The pesticide company argued that state regulators “seem to impose a zero tolerance policy for the presence of contaminants” that doesn’t exist in federal law.

Federal regulations pertaining to impurities don’t mention labeling or packaging, so the U.S. Environmental Protection Agency’s guidance about “toxicologically significant” contaminants is “irrelevant here,” she said.

The plaintiff claimed the EPA’s guidance on organic labeling allows trace levels of impurities, but that guidance doesn’t have “the force of law” and thus “lacked pre-emptive effect” on the orders of state regulators, the judge said.

Oregon’s “stop sale” order also isn’t implicitly pre-empted by federal law because it’s “not impossible” for the pesticide company to comply with both the state law and FIFRA labeling rules, Aiken said. The company can do so by ensuring its product “does not contain malathion, chlorpyrifos or permethrin.”

The pesticide company argued that its neem oil contained less than one part per million of those chemicals and that it would be diluted 100-fold with water before getting sprayed on crops, which means they aren’t active ingredients that must be labeled under federal law.

By faulting the company for misbranding and adulteration, the ODA was going beyond the requirements of federal law, the company claimed.

According to ODA, the contaminants were discovered during routine testing of biopesticides that state regulators permit for use on marijuana.

The crop is legal in Oregon but illegal under federal law, so no federally approved pesticides are labeled specifically for it. However, the state does allow marijuana to be treated with general biopesticides.

The pesticide company argued that it had never given permission for its neem oil to be included on ODA’s list of biopesticides and that using the product on marijuana violated FIFRA.

Sign up for our Top Stories newsletter

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

Recommended for you