Could Montgomery County require lawn care companies to disclose pesticide risks to customers, or did federal law preempt that kind of local pesticide ordinance?

Plain-English summary

A delegate asked the Attorney General whether Montgomery County had authority to enact Bill No. 26-85, a proposed ordinance that would require lawn care businesses and pesticide dealers to give customers information about pesticide health risks before and after applying pesticides to a lawn, including trade and generic names of chemicals used, safety precautions, emergency phone numbers, and posted warning signs after each application, with criminal penalties for violations.

The opinion first found the County had general home-rule authority under Article XI-A of the Maryland Constitution and the Express Powers Act to regulate matters affecting public health and safety, and that the proposed ordinance did not conflict with existing Maryland pesticide statutes, which regulated licensing and application standards but did not address consumer disclosure. It then concluded, however, that the ordinance was preempted by the federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which comprehensively regulated pesticide sale and use nationwide. Working through FIFRA's text, which authorized regulation only by "States" (a term the statute defined without reference to political subdivisions) while other provisions expressly mentioned political subdivisions when Congress meant to include them, and through the statute's legislative history, in which the House rejected an amendment to permit local regulation and the Senate Agriculture Committee expressly stated its intent that political subdivisions have no jurisdiction over pesticides, the opinion concluded Congress intended pesticide regulation to remain a federal-state system with no role for counties or municipalities. It noted EPA's own regulations disclaimed any intent to authorize local pesticide regulation, and it distinguished a contrary California Supreme Court decision as resting on an incomplete reading of the legislative record. An editor's note attached to the opinion records that a federal district court and the Fourth Circuit Court of Appeals later affirmed this preemption conclusion in litigation over the same ordinance, and that the General Assembly subsequently enacted state-level pesticide disclosure and posting requirements in 1987.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why couldn't Montgomery County make lawn care companies warn customers about pesticide risks in 1985?
The opinion concluded that FIFRA, the federal pesticide law, preempted the field of pesticide regulation below the state level, based on statutory language authorizing regulation only by "States" and a legislative history in which Congress specifically rejected letting counties and municipalities regulate pesticides.

Did the courts ever weigh in on this specific Montgomery County ordinance?
Yes. The opinion's editor's note records that Maryland Pest Control Ass'n v. Montgomery County, decided by a federal district court in 1986 and affirmed by the Fourth Circuit in 1987, confirmed that FIFRA preempted the county's authority to enact this kind of ordinance.

Did Maryland ever get pesticide-disclosure rules like the ones Montgomery County wanted?
According to the editor's note, yes, but at the state level: the General Assembly enacted Chapter 302, Laws of Maryland 1987, requiring pesticide applicators to give customers certain information and to post signs after applying pesticides to lawns or landscape plants.

Was Maryland's own pesticide law also a problem for the county ordinance?
No. The opinion found the existing state pesticide statutes, which addressed licensing and safe application standards, did not conflict with or preempt the county's proposed disclosure ordinance; the fatal problem was federal law, not state law.

Could any Maryland town or county regulate pesticides after this opinion?
The opinion noted that the town of Manchester in Carroll County had an ordinance restricting pesticide application, and stated that its preemption conclusion applied equally to municipalities, not just counties.

Background and statutory framework

Montgomery County, a charter county, derived its general legislative authority from Article XI-A of the Maryland Constitution and the Express Powers Act, Article 25A, §5(J) and 5(S), which authorized regulation of conditions detrimental to health and the welfare of the county, subject to Article XI-A, §3's rule that local law yields to conflicting Public General Law. The opinion found Maryland's own pesticide statutes, the Pesticide Registration and Labeling Law and the Pesticide Applicator's Law codified at §§5-101 through 5-114 and 5-201 through 5-211 of the Agriculture Article, addressed licensing, certification, and application standards but neither conflicted with nor comprehensively occupied the field the county ordinance addressed, so no state-law preemption applied.

Federal preemption analysis proceeded under the general framework of Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), and Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190 (1983): express preemption, field preemption where federal regulation is sufficiently pervasive, or conflict preemption where state law frustrates federal purposes, tempered by the presumption against preemption of traditional police powers absent a clear and manifest congressional purpose, citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947). The opinion found FIFRA, 7 U.S.C. §136 et seq., comprehensively regulated pesticide sale and use, and that its "Authority of State" provision, 7 U.S.C. §136v, authorized regulation only by "States" as defined in §136(aa), a definition that omitted political subdivisions even though other FIFRA provisions, such as §136f(b), §136r(b), and §136t(b), expressly referenced political subdivisions when Congress meant to include them. The legislative history, including the House Agriculture Committee's rejection of a local-regulation amendment, the Senate Agriculture Committee's express statement depriving political subdivisions of pesticide jurisdiction, and the ultimate exclusion of the Senate Commerce Committee's contrary amendment from the enacted bill, confirmed that reading, as did EPA's own administrative interpretation, 40 Fed. Reg. 11697, 11700 (1975), entitled to deference under Udall v. Tallman, 380 U.S. 1 (1965).

Citations

Statutes:

• Article XI-A, §2 of the Maryland Constitution (charter county express powers)
• Article XI-A, §3 of the Maryland Constitution (local law yields to conflicting Public General Law)
• Article 25A, §5(J) of the Maryland Code (Express Powers Act, health regulation authority)
• Article 25A, §5(S) of the Maryland Code (Express Powers Act, health and welfare authority)
• §§5-101 through 5-114 of the Agriculture Article (Maryland Pesticide Registration and Labeling Law)
• §§5-201 through 5-211 of the Agriculture Article (Pesticide Applicator's Law)
• §5-209 of the Agriculture Article (supervision requirement for commercial pesticide application)
• §5-201(j) of the Agriculture Article (definition of pesticide)
• COMAR 15.05.01.02 through 15.05.01.22 (state pesticide implementing regulations)
• U.S. Constitution, Article VI, Clause 2 (Supremacy Clause)
• 7 U.S.C. §136 et seq. (Federal Insecticide, Fungicide, and Rodenticide Act)
• 7 U.S.C. §136b (applicator certification program)
• 7 U.S.C. §136a (pesticide registration and classification)
• 7 U.S.C. §136j(a)(F) (limiting pesticide use to lawful purposes)
• 7 U.S.C. §136j(a)(G) (prohibition on use contrary to label)
• 7 U.S.C. §136v (Authority of State provision)
• 7 U.S.C. §136(aa) (definition of "State")
• 7 U.S.C. §136f(b) (inspection authority referencing political subdivisions)
• 7 U.S.C. §136r(b) (monitoring plan cooperation with local agencies)
• 7 U.S.C. §136t(b) (EPA cooperation with local agencies)
• 7 U.S.C. §136w-1 (state primary enforcement responsibility)
• 7 U.S.C. §136w-2 (EPA rescission of state enforcement authority)
• 7 U.S.C. §136v(b) (bar on additional state labeling/packaging requirements)
• 7 U.S.C. §136(p)(2) (definition of "labeling")
• 7 U.S.C. §136(u) (definition of "pesticide")
• 40 C.F.R. §162.5 (pesticide registration requirement)
• 40 C.F.R. §152 (state registration authorization)
• 40 C.F.R. §155 (suspension of state registration authority)
• 40 C.F.R. §165 (storage and disposal requirements)
• 40 C.F.R. §166 (emergency exemption for federal/state agencies)
• 40 C.F.R. §167 (registration of pesticide manufacturing)
• 40 C.F.R. §170 (agricultural worker protection standards)
• 40 C.F.R. §173.8 (rescission of state enforcement authority)
• 40 C.F.R. §162.10 (pesticide labeling requirements)
• 21 U.S.C. §321(m) (analogous "labeling" definition under the Food, Drug, and Cosmetic Act)
• Chapter 302, Laws of Maryland 1987 (later state-level pesticide disclosure/posting law)
• Section 62-11 of the Manchester Code (Carroll County town pesticide ordinance)

Cases:

• Ritchmount Partnership v. Board of Supervisors of Elections for Anne Arundel County, 238 Md. 48, 57 (1978)
• Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984)
• Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 204 (1983)
• City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633 (1973)
• Don't Tear It Down, Inc. v. Pennsylvania Avenue Development Corp., 642 F.2d 527 (D.C. Cir. 1980)
• Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)
• National Agricultural Chemicals Ass'n. v. Rominger, 500 F. Supp. 465, 468 (E.D. Cal. 1980)
• Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 515-16 n.12 (1981)
• Town of Wendell v. Bellotti, No. 15119 (Mass. Superior Ct., March 19, 1984), vacated on other grounds, 476 N.E.2d 585 (Mass. 1985)
• People ex rel. Deukmejian v. County of Mendocino, 683 P.2d 1150 (Cal. 1984)
• Udall v. Tallman, 380 U.S. 1, 16-17 (1965)
• Kordel v. United States, 335 U.S. 345, 348 (1948)
• Maryland Pest Control Ass'n v. Montgomery County, Civil Action No. JFM-86-1688 (D.Md. Sep. 29, 1986), affd, No. 86-3639 (4th Cir. June 16, 1987)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PESTICIDE REGULATION

Political Subdivisions—Preemption/Conflict—The Authority of Political Subdivisions to Regulate Pesticides has been Preempted by Federal Law.

October 28, 1985

The Honorable Jerry H. Hyatt
Maryland House of Delegates

You have requested our opinion concerning the legality of a proposed Montgomery County ordinance, introduced as Bill No. 26-85, that would require lawn care businesses and pesticide dealers to provide information to customers concerning pesticide health risks. Specifically, you have asked if the County's authority to enact this ordinance is preempted by either State or federal law.

For the reasons given below, it is our opinion that Montgomery County's authority to enact Bill No. 26-85 or comparable pesticide regulation is preempted by federal law.

I
The Proposed Ordinance

Bill No. 26-85 is intended to warn the public of the dangers of pesticides before and after they are applied to a lawn.1 In order to accomplish this goal, the bill would amend the Montgomery County Code to require that a lawn service applying pesticides ("custom applicator") give new customers a list containing the following information before a pesticide is actually used on a lawn:

"(A) the trade name of each pesticide that might be used;
(B) the generic name of each pesticide that might be used; and
(C) specific customer safety precautions for each pesticide that might be used[.]" Proposed §33B-2(b)(1).2

Proposed §33B-2(d) requires that the custom applicator also provide the following written information:

"(1) government agency phone numbers to call to:
(A) make a consumer complaint;
(B) receive technical information on pesticides; and
(C) get assistance in case of a medical emergency;
(2) a list of general safety precautions a customer should take when a lawn is treated with a pesticide;
(3) a statement that a custom applicator must:
(A) be licensed by the Maryland Department of Agriculture, and
(B) follow safety precautions; and
(4) a statement that the customer has the right to require the custom applicator to notify the customer before each treatment of the lawn of the customer with a pesticide."

Moreover, the bill requires a custom applicator to post a warning sign immediately after the pesticide application. Proposed §33B-3.

Although the bill principally regulates lawn care businesses, proposed §33B-4 reaches all retail sellers of "a pesticide or material that contains a pesticide." It requires them to make County-approved warning signs and other printed material available to buyers.3

Finally, proposed §33B-6 provides that a violation of the bill's provisions is a misdemeanor and subjects the violator to a possible prison term and a fine.

II
County Authority to Regulate Pesticides

Absent a prohibition by State or federal law, Montgomery County generally has authority to regulate the sale and use of pesticides. As a charter county, it may exercise the express powers granted to it by the General Assembly. Article XI-A, §2 of the Maryland Constitution. Thus, the County may exercise ". . . a wide array of legislative and administrative powers over local affairs" and ". . . legislate for the benefit of the health, safety and general welfare of the local community." Ritchmount Partnership v. Board of Supervisors of Elections for Anne Arundel County, 238 Md. 48, 57 (1978).

The Express Powers Act grants the County broad authority to regulate "conditions detrimental to health" and to provide for the "health and welfare" of the County. Article 25A, §5(J) and 5(S) of the Maryland Code. County regulation concerning the safe use of pesticides is plainly within these grants of authority.

Moreover, the County's enactment of Bill No. 26-85 would not conflict with, or be preempted by, State law.4 Although State law regulates some aspects of pesticide application, it neither addresses the matters covered by Bill No. 26-85 nor ousts local jurisdictions of authority to act in this field.5

However, for the reasons set forth in Part III below, enactment of Bill No. 26-85 is precluded by federal law.

III
Federal Preemption

A. Introduction

When acting within its constitutional authority, Congress unquestionably may preempt state and local laws. U.S. Constitution, Article VI, Clause 2. The United States Supreme Court has held that state law is preempted by federal law if: (1) federal law so states in express terms; (2) federal legislation in a given area is so pervasive that it is reasonable to conclude that Congress intended to "occupy the field" and thereby preclude state legislation on the same subject; or (3) the state law actually conflicts with or frustrates the full purpose or operation of federal law. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 204 (1983). Federal law preempts when local ordinances or regulations collide with or obstruct federal objectives. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633 (1973); Don't Tear It Down, Inc. v. Pennsylvania Avenue Development Corp., 642 F.2d 527 (D.C. Cir. 1980). However, a court will not find that the exercise of traditional state or local police powers is preempted "unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

B. Federal regulation of pesticides

The Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §136 et seq. ("FIFRA"), comprehensively regulates both the interstate and intra-state sale and use of pesticides. See National Agricultural Chemicals Ass'n. v. Rominger, 500 F. Supp. 465, 468 (E.D. Cal. 1980).6

FIFRA's overall purpose is to protect man and the environment from pesticide contamination. S. Rep. No. 838, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code & Cong. & Adm. News 3995. More specifically, the law establishes a nationwide system for training and certifying pesticide applicators in the safe use and hazards of pesticides (§136b); requires the registration of pesticides and classifies them according to "general" or "restricted" use (§136a); limits pesticide use to purposes permitted by law (§136j(a)(F)); and makes it unlawful to apply a pesticide contrary to label instructions (§136j(a)(G)). The Environmental Protection Agency enforces FIFRA and has adopted detailed regulatory requirements to promote the safe use of pesticides.7

The preemption question in this case is whether the language of FIFRA reflects a congressional intent to deny political subdivisions of a state the authority to regulate pesticides. In our view, Congress so intended.

C. FIFRA's preemption provision

1. Statutory language

The section of FIFRA headed "Authority of State", 7 U.S.C. §136v, provides in pertinent part that:

"(a) A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Such State shall not impose or continue in effect any requirement for labeling or packaging in addition to or different from those required under this subchapter.
(c) (1) A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator. Such registration shall be deemed registration under [7 U.S.C. §136a] for all purposes of this subchapter, but shall authorize distribution and use only within such State." (Emphasis added.)

The definition of "State" in FIFRA does not refer to political subdivisions:

"The term 'State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa." 7 U.S.C. §136(aa).

Significantly, FIFRA contains several provisions that do refer expressly to political subdivisions, as distinct from states. See 7 U.S.C. §136f(b) (officers and employees of EPA "or of any State or political subdivision" entitled to inspect records); 7 U.S.C. §136r(b) (EPA to develop monitoring plan "in cooperation with other Federal, State or local agencies"); 7 U.S.C. §136t(b) (EPA to cooperate with "any appropriate agency of any State or any political subdivision thereof"). Thus, when Congress intended that local governments play a role in FIFRA's regulatory scheme, it specifically said so.

Moreover, other provisions identify "State" responsibilities that could not feasibly be undertaken at the local level. For example, 7 U.S.C. §136b grants authority to "any State", after the EPA Administrator and the governor of such state consult, to designate a state agency to conduct a statewide program for certifying pesticide applicators. Section 136w-1 provides that a "State" shall have primary responsibility for enforcing pesticide use violations, and §136w-2 provides that the EPA administrator may rescind a state's authority over pesticide use violations.

2. Legislative history

FIFRA's legislative history further confirms our view that Congress intended to preempt all regulation below the state level.

When the bill ultimately enacted as FIFRA passed the House, it contained no language authorizing local regulation. Indeed, such a proposal had been defeated in House committee:

"The Committee [on Agriculture] rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions." H.R. Rep. No. 511, 92d Cong., 1st Sess. at 16 (1971).

In the Senate, the bill was referred to two committees, the Agriculture and Forestry Committee and the Commerce Committee. Both committees expressly addressed the question of whether local governments should have a role in FIFRA's regulatory scheme.

First, the Agriculture Committee commented favorably on what it viewed as the House's decision to bar local regulation:

"The Senate [Agriculture and Forestry] Committee considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction over pesticides and concurs with the decision of the House of Representatives. Clearly, the fifty States and the Federal Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, if any, local authorities whether towns, counties, villages, or municipalities have the financial wherewithal to provide necessary expert regulation comparable with that provided by the State and Federal Governments. On this basis and on the basis that permitting such regulation would be an extreme burden on interstate commerce, it is the intent that [7 U.S.C. §136v] by not providing any authority to political subdivisions and other local authorities of or in the States, should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides." S. Rep. No. 92-838, 92d Cong. 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 3993, 4008. (Emphasis added).

The Commerce Committee disagreed, and proposed an amendment to "giv[e] local governments the authority to regulate the sale or use of a pesticide beyond the requirements imposed by State and Federal authorities." It commented on its proposed amendment as follows:

"Many local governments now regulate pesticides to meet their own specific needs which they are often better able to perceive than are State and Federal regulators. The amendment of the Committee on Commerce is intended to continue the authority of such local governments and allow them to protect their environment to a greater degree than would EPA." S. Rep. No. 92-970, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Adm. News 4111.

But the Agriculture Committee then reiterated its opposition to local regulation:

"This Commerce Committee amendment would permit local governments in addition to the Federal and State governments to regulate the sale or use of a pesticide. The Committee on Agriculture and Forestry felt that regulation by the Federal Government and the 50 States should be sufficient and should preempt the field." 1972 U.S. Code Cong. & Ad. News at 4026. See also 1972 U.S. Code Cong. & Ad. News at 4066.

A compromise bill was then marked up and sent to the Senate floor. This bill did not contain the local government amendment favored by the Commerce Committee. Rather, the Commerce Committee amendment was specifically identified for the record as "not included in the substitute [bill]." 118 Cong. Rec. 32258 (1972) (emphasis added). The substitute bill passed the Senate unanimously. 118 Cong. Rec. 32263 (1972).

Because both the House and the Senate versions of the bill contained no provision allowing local governments to regulate pesticides, local regulation was not mentioned in the conference report. 118 Cong. Rec. 35543-46, 33924 (1972). Thus, given both the express statements of the House and Senate Agriculture Committees depriving local governments of pesticide regulatory authority and the rejection of an amendment that would have granted that authority, we conclude that Congress intended to preclude local regulation in this area. See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 515-16 n.12 (1981) (rejection of a committee amendment evidence that Congress did not intend to include its subject matter in the law).

3. Administrative construction

When EPA adopted nationwide standards for the certification of pesticide applicators, the agency stated its view that political subdivisions do not have pesticide regulatory authority: "It is not the intention of [FIFRA] or these regulations to authorize political subdivisions below the State level to further regulate pesticides." 40 Fed. Reg. 11697, 11700 (1975).

Agency interpretations of the laws they administer are to be given great deference. Udall v. Tallman, 380 U.S. 1, 16-17 (1965).

4. Subsequent construction of FIFRA

The conclusion that FIFRA preempts local regulation finds support in other jurisdictions. See Town of Wendell v. Bellotti, No. 15119 (Mass. Superior Ct., March 19, 1984), vacated on other grounds, 476 N.E.2d 585 (Mass. 1985) (FIFRA was intended to constitute a federal-state plan for the comprehensive regulation of pesticides; local regulation would thwart the statutory purpose); 40 Opinions of the Attorney General (Ore.) (No. 7924, July 11, 1980)(Senate Commerce Committee amendment authorizing local regulation was not included in final bill; thus, no such regulation is permitted).

One California case reads FIFRA's legislative history differently. In People ex rel. Deukmejian v. County of Mendocino, 683 P.2d 1150 (Cal. 1984), the California Supreme Court concluded that, since the Act as passed did not include a clear expression of congressional intent to prohibit local regulation, such regulation was permissible. However, this view of FIFRA's preemption provision is "based on an untenable reading of the legislative record." 683 P.2d at 1164 (Kaus, J., dissenting). In particular, the Mendocino County decision brushes aside the fact that, as enacted, FIFRA's preemption section reflects the intent of the House and Senate Agriculture Committees:

"[I]t is the intent that [7 U.S.C. §136v], by not providing any authority to political subdivisions and other local authorities of or in the States, should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides." S. Rep. No. 838, 92d Cong. 2d Sess (1972).

D. Summary

Congress intended to create a federal and state, not a federal-state-local, system of regulating pesticides. The language of the provision in FIFRA allocating regulatory authority, and the legislative history of that provision, reflect the congressional view that state resources were superior to those of the localities and that local regulation by each county, town, and village throughout the country would create an intolerable burden on interstate commerce. Hence, Bill No. 26-85 is preempted by federal law.8

VI
Conclusion

In conclusion, it is our opinion that Montgomery County may not adopt Bill No. 26-85, or any comparable legislation regarding pesticides, because the County's authority to regulate in this area is preempted by federal law.9

1 The Legislative Request Report on Bill No. 26-85 describes its "goals and objectives" as follows:

"The purpose of [Bill No. 26-85] is to promote the public health and safety by providing for the public notice of the use of pesticides, thereby providing the public the opportunity of avoiding contact with these pesticides. It is also intended to provide the customers or custom applicators with appropriate information concerning the health and safety of these applications."

Under certain circumstances, significant health risks are associated with exposure to pesticides. The following are trade names and risk data for a few of the chemicals commonly used by Maryland lawn care services: Dursban, an insecticide, may be fatal if swallowed or absorbed through the skin; 2,4-D, a herbicide, is harmful if swallowed or inhaled and should not come into contact with eyes, skin or clothing; and Daconil, a fungicide, may produce allergic reaction, redness of the eyes and mild bronchial irritation. The Maryland Department of Agriculture reported that 18,466 lbs. of Dursban, 8,738 lbs. of 2,4-D and 3,905 lbs. of Daconil were applied in Montgomery County in 1982. Pesticide Usage in 1982 at 7 (1982).

2 Bill No. 26-85 defines "pesticide" broadly to include fungicides, defoliants, and like substances. §33B-1(6). Federal and State law definitions are comparably broad. See 7 U.S.C. §136(u) and §5-201(j) of the Agriculture Article.

3 Proposed §33B-4 appears to reach persons unintended by the drafter. Although the Legislative Request Report indicates that consumer information need be supplied only by pesticide vendors for lawn care, the bill's language is broad enough to reach any person who sells products containing a pesticide. This means that sellers of dog and cat flea collars, pressure-treated wood, bactericide disinfectants, fungus-resistant paint and swimming pool chemicals would be subject to the requirements of the ordinance.

4 Article XI-A, §3 of the Maryland Constitution limits the authority of charter counties to enact local laws as follows:

"All such local laws enacted by . . . the Council of the Counties as hereinbefore provided, shall be subject to the same rules of interpretation as those now applicable to the Public Local Laws of this State, except that in case of any conflict between said local law and any Public General Law now or hereafter enacted the Public General Law shall control."

Article 25A, §5(J) also provides that charter county legislation on health and related subjects must be consistent with State law:

"Nothing in this article or section contained shall be construed to affect in any manner any of the powers and duties of the Secretary of Health and Mental Hygiene or any public general laws of the State relating to the subject of health."

5 Maryland law regulating pesticides is codified at §§5-101 through 5-114 (Maryland Pesticide Registration and Labeling Law) and §§5-201 through 5-211 (Pesticide Applicator's Law) of the Agriculture Article. As with the Montgomery County ordinance, the safe use of pesticides is the objective of the State law. For instance, §5-209 of the Agriculture Article requires all commercial applications of any pesticides to be done under the direct supervision of a person certified by the State Department of Agriculture.

Implementing regulations, codified in COMAR 15.05.01.02 through 15.05.01.22, generally provide for the use and sale of pesticides, the licensing and testing of persons who apply pesticides, standards for handling and storage, and the grounds for license revocation. However, there are no State regulations requiring lawn care businesses to post warning signs or to compel pesticide dealers to give customers safety information; hence, there is no conflict between Bill No. 26-85 and State law.

In our opinion, existing State law also does not preempt the County's authority to regulate pesticides, because State law neither contains express preemption language nor so comprehensively regulates in this area that a court would be compelled to find preemption by implication. See generally 69 Opinions of the Attorney General 183, 190-201 (1984) (reviewing case law on conflict and preemption).

6 Historically, the federal government's role in pesticide regulation has expanded from merely supplementing state regulatory authority under the Federal Inspection Act of 1910 to comprehensively regulating pesticides in interstate commerce under FIFRA. S. Rep. No. 838, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 3999.

7 EPA regulations further FIFRA's aim to comprehensively regulate all aspects of the sale and use of pesticides. See, e.g., 40 C.F.R. §162.5 (requirement that all pesticides be registered with EPA); 40 C.F.R. §152 (authorization for states to register pesticides); 40 C.F.R. §155 (suspension of state registration authority); 40 C.F.R. §165 (requirements for storage and disposal of pesticides and pesticide containers); 40 C.F.R. §166 (exemption of federal and state agencies for the use of pesticides in an emergency); 40 C.F.R. §167 (registration of pesticide manufacturing); 40 C.F.R. §170 (protection standards for agricultural workers); and 40 C.F.R. §173.8 (rescission of a state's enforcement authority).

With regard to information disclosure, Bill No. 26-85 is far more stringent than any federal requirement. However, EPA-approved pesticide labels do serve the same purpose as Bill No. 26-85, they warn of pesticide health hazards and set a standard for safe pesticide use. Furthermore, we note that several EPA labels require warning signs to be posted after a pesticide application. For example, the label for Union Carbide's Temik requires that signs be placed near treatment areas for four weeks after use. Likewise, the label for methyl bromide requires that signs be posted while a building is being fumigated.

8 In addition, Congress has fully occupied the field of pesticide labeling and forbids even the states from imposing additional or different packaging or labeling requirements from those required under FIFRA. 7 U.S.C. §136v(b). (40 C.F.R. §162.10 establishes labeling requirements for pesticides.) Even if Montgomery County were not otherwise preempted from regulating pesticides, the approved notice signs and other written materials that pesticide sellers must make available to buyers under §33B-4 of the proposed ordinance might be held to fall within FIFRA's definition of "labeling":

"The term 'labeling' means all labels and all other written, printed, or graphic matter, (A) accompanying the pesticide or device at any time; or (B) to which reference is made on the label or in literature accompanying the pesticide or device, except to current official publications of the Environmental Protection Agency, the United States Departments of Agriculture and Interior, the Department of Health and Human Services, State experiment stations, State agricultural colleges, and other similar Federal or State institutions or agencies authorized by law to conduct research in the field of pesticides." 7 U.S.C. §136(p)(2).

See Kordel v. United States, 335 U.S. 345, 348 (1948) (written information distributed to consumers by vendors of drugs held within the similar definition of "labeling" in Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §321(m)).

Currently, the only local government that regulates pesticides in Maryland is the town of Manchester, Carroll County, Maryland. Section 62-11 of the Manchester Code provides that:

"It shall be unlawful to apply a pesticide, herbicide or fungicide within the town limits of Manchester without receiving permission therefor from the Mayor and Council thirty (30) days in advance of application. Notice of date of application shall be posted in areas to be sprayed ten (10) days in advance of actual application. Notices of application shall be posted less than one hundred (100) yards apart. Any person applying a pesticide on any area of ten thousand (10,000) square feet or less shall be exempt from the provisions of this section."

Our conclusion that federal law preempts county authority to regulate pesticides applies as well to municipalities.

Stephen H. Sachs, Attorney General
Craig A. Nielsen, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: This opinion's conclusion has since been affirmed by the federal courts. Maryland Pest Control Ass'n v. Montgomery County, Civil Action No. JFM-86-1688 (D.Md. Sep. 29, 1986), affd, No. 86-3639 (4th Cir. June 16, 1987).

Since the issuance of the opinion, the General Assembly has enacted legislation requiring pesticide applicators to provide certain information to customers and to post signs after applying pesticides to lawns or landscape plants. Chapter 302, Laws of Maryland 1987.