The Regulatory Failure of FIFRA, FQPA, and TSCA: How Cost-Benefit Analysis Undermines Public Health

Eliana Hernandez

The regulation of toxic substances plays a critical role in protecting human health and the environment. Congress enacted the Food Quality Protection Act (FQPA) [1] to emphasize food safety protections with regard to pesticides, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) [2] for pesticide regulation, and the Toxic Substances Control Act (TSCA) [3] to regulate industrial chemicals. They were passed to control the sale of chemicals and substances that potentially pose a great harm to individuals, and these laws attempt to mitigate the negative impacts of pesticides and industrial chemicals. However, they often fail to completely reduce these risks due to regulatory loopholes, underfunding, and industry influences.

In 1996, Congress designed the FQPA to reassess and strengthen pesticide regulation, especially with regard to food safety and children. This Act requires the Environmental Protection Agency (EPA) [4] to set pesticide residue limits with an “additional tenfold (10x) safety factor” [5] for children to assure that the pesticide use poses “a reasonable certainty of no harm.” [6] This extra margin of safety was set with the intention of accounting for the increased vulnerability that children have as a result of their developing organs, as well as how often children are more likely to put their hands in their mouths and get sick. Unfortunately, the 10x safety factor often proves itself to be inadequate because the EPA may choose to reduce or even eliminate the safety limit if it receives data from pesticide manufacturers suggesting that the margin is unnecessary. This essentially means that the 10x safety margin can not be consistently or effectively applied to keep children safe. A medical journal published in 2020 showed that in the case of 47 pesticides, the EPA required a tenfold safety margin for only 4 pesticides. [7] The EPA’s conduct in this matter undermines the FQPA’s intent to protect children and infants from long-term exposure to the harmful residues. Aside from this, the Act also mandates periodic reregistration of pesticides to account for any new scientific findings. Despite these improvements, the FQPA does not eliminate all harmful pesticide residues on food. [8]

Congress passed FIFRA, which governs pesticide registration and approval, and amended the Act in 1972 to strengthen its provisions. This Act requires the EPA to evaluate pesticides to determine if they present “unreasonable adverse effects” [9] on human health or the environment. Unfortunately, FIFRA also calls for the EPA to use a cost-benefit analysis [10] when determining unreasonable adverse effects, allowing economic and social benefits to outweigh health and environmental risk. This type of analysis becomes a problematic balancing act because it prioritizes political practicality and economic convenience over true health protection. The continued use of Roundup, for example, a powerful herbicide which scientists have linked to varying diseases and illnesses, demonstrates this problem. Roundup may be allowed to continue on the market because it is made of glyphosate, which the EPA considers to be safe up to an established tolerance, despite the World Health Organization classifying it as a “probable human carcinogen.” [11] The EPA established the glyphosate safety tolerance as “ranging from 0.1 to 400 parts per million (ppm).” [12] This tolerance level demonstrates an outdated toxicological foundation, as well as a reliance on manufacturer-supplied data. [13] Essentially, the EPA permits levels of exposure it deems acceptable, despite evidence linking them to cancer and genetic damage, as seen with Non-Hodgkin’s Lymphoma. [14]

A deeper analysis and understanding of the statutory language used in FIFRA further demonstrates its limitations and the gap created by regulatory loopholes. FIFRA defines “unreasonable adverse effects on the environment” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” [15] This definition explicitly shows that the EPA engages in a balancing act that illustrates a politically acceptable risk rather than a strict health-based standard. This can be seen in the case of National Coalition Against the Misuse of Pesticides (NCAMP) v. EPA. [16] NCAMP became concerned about the alleged hazard posed by chlordane and filed a formal petition to suspend and cancel all product registrations regarding chlordane. The D.C. Circuit Court reversed a district court’s decision and its injunction that barred the EPA from permitting the sales, commercial use, and commercial applications of chlordane and heptachlor. The court reasoned that the EPA must balance various competing factors and must be allowed to “fulfill its commitment under the original settlements.” [17] They determined that the EPA’s decision to continue allowing sales and use of chlordane and heptachlor was lawful under FIFRA and that this action would be denying them the ability to act as they believe fit. This case exemplifies how the courts have upheld the EPA’s cost-benefit approach despite challenges presented by public health advocates. NCAMP v. EPA affirmed the EPA’s discretion regarding the weighing of economic factors in public health concerns, which further highlights the Act’s weakness in actually prioritizing safety. The court’s ruling upheld the agency’s broad discretion under FIFRA and reasserted a complacent system that tolerates health risks in the face of perceived economic gains. The court reinforced a framework that dilutes public health protections through the use of a cost-benefit analysis.

The TSCA, passed in 1976, regulates industrial chemicals and was updated by the Lautenberg Act, signed by President Obama in 2016. The Act exempts pesticides, which fall under FIFRA’s purview. The original TSCA placed the burden on the EPA to prove a chemical’s harm before restricting it, which allowed chemicals that were already in use (grandfathered chemicals) to continue being sold without modern safety testing. The Lautenberg amendments shifted this burden to chemical manufacturers, requiring proactive safety evaluations for all new chemicals, rather than reactive ones. [18] However, enforcement remains slow and inconsistent due to chronic underfunding and EPA delays, which allow dangerous substances like perfluorooctanoic acid (PFOA) to persist in the environment. [19] One expert has alleged that: “if you are a sentient being…you already have PFOA in your blood.” [20] The known issue of PFOAs has existed for decades, and Robert Bilott, the lawyer for a community impacted by DuPont’s actions, tackled it when a case landed in his lap in 1998.

In 2016, Nathaniel Rich’s The Lawyer Who Became DuPont’s Worst Nightmare highlighted Bilott’s legal battle against DuPont in which he exposed the TSCA’s regulatory failures and discovered that the company knowingly contaminated drinking water in a town named Parkersburg with PFOA, a chemical used in Teflon production. [21] Internal documents revealed that DuPont concealed health risks for decades, leading to severe illnesses in exposed communities. When DuPont first started using PFOA, 3M made recommendations regarding the chemical disposal. [22] Incineration or chemical-waste facilities needed to be employed in the disposing of PFOA; however, the company had failed in this endeavor and “dumped hundreds of thousands of pounds of PFOA powder through the outfall pipes of Parkersburg facility.” [23] Rich shows in his article that the powder eventually made its way into the drinking water supply and affected many residents, including local farmer Wilbur Tennant and his cows. [24] Bilott ultimately demonstrates that the EPA failed to act under the original TSCA at the time because the law’s weakness made it ineffective for regulating grandfathered chemicals. This was because TSCA then required regulators to prove harm before restricting chemicals. The 2016 Lautenberg Act strengthened TSCA by mandating risk-based chemical reviews, but these reviews remain slow and underfunded. While the EPA now has more authority to ban harmful chemicals, corporate interference, as seen by DuPont’s continued use of PFOA and widespread contamination, continues to delay compulsory action.

Prior to DuPont’s actions, Rachel Carson’s Silent Spring warned of pesticide overuse and its devastating effects on ecosystems. She thoroughly described how a chemical known as dichlorodiphenyltrichloroethane (DDT) and other pesticides poisoned wildlife, entered the food chain, and harmed human health. Following the release of DDT for civilian use, insects developed resistance to the chemical, requiring scientists to develop a “deadlier one” [25] “and then a deadlier one after that.” [26] The constant development of harsher chemicals proved Carson’s assertion that “more toxic materials must be found.” [27] While the EPA banned DDT in 1972, other hazardous pesticides continue to be used under FIFRA’s cost-benefit approach. The EPA addresses some of Carson’s concerns by requiring periodic pesticide reviews, but it fails to eliminate all harmful chemicals from agriculture. Carson argued that government regulators allowed toxic chemicals into the environment without caring about the long-term effects on the environment, and this critique still holds true today.

Today, the EPA continues to struggle to regulate pesticides quickly, which allows chemical companies to exploit legal loopholes, as seen with DuPont’s conduct. [28] The FQPA, FIFRA, and TSCA have reduced some risks, but they have not stopped the cycle of introducing new harmful chemicals into the environment without full testing to protect human health. Valerie Watnick’s The Roundup Controversy: Glyphosate Litigation, Non Hodgkin’s Lymphoma and Lessons for Toxics Regulation Going Forward (The Roundup Controversy) illustrates FIFRA’s failure to protect public health. Monsanto (now Bayer) manufactures Roundup, a glyphosate-based herbicide linked to Non-Hodgkin’s Lymphoma. Between 1991 and 1997, scientific researchers determined that glyphosate bares a genotoxic link, meaning that glyphosate causes damage to an individual’s DNA, and leads to cancer or mutations. [29]

Even though WHO classified glyphosate as a “probable human carcinogen," [30] the EPA continues to permit its use under FIFRA’s cost-benefit framework. Plaintiffs in Roundup lawsuits argued that Monsanto misled consumers about glyphosate’s safety, and juries awarded billions in damages, demonstrating their finding that Roundup is dangerous. Despite glyphosate’s link to serious health concerns, Roundup remains on the market because the EPA uses industry data to maintain the idea that the active ingredient doesn’t pose risks to human health if it is used as directed. [31] FIFRA’s flawed pesticide registration process also plays a role in Roundup’s position on the market despite compelling evidence of its harm.

The EPA enforces FQPA, FIFRA, and TSCA, but industry influence and resource limitations hinder its effectiveness. FIFRA’s cost-benefit standard allows pesticides to remain in use when they may pose a threat to human health, while TSCA’s slow chemical evaluations leave millions exposed to dangerous substances. These acts fail to create a necessary seamless regulatory system. FQPA focuses on food safety, FIFRA regulates pesticides, and TSCA governs industrial chemicals, but none of these laws address environmental toxins comprehensively. Regulatory overlap creates loopholes that allow harmful chemicals to evade strict oversight, and the U.S. must resolve them to strengthen chemical regulation. A precautionary approach, similar to the European Union’s "no data, no market" policy (REACH: registration, evaluation, and authorization of chemicals), [32] would require chemical manufacturers to prove safety before selling products rather than after. The EPA must accelerate chemical reviews, and Congress should increase funding to improve this enforcement. Environmental laws must prioritize human health over corporate profits, as noted in Silent Spring. Unfortunately, glyphosate and PFOA controversies continue to reveal persistent failures in strengthening regulatory action. If the U.S. does not reform its approach, toxic chemicals will continue to threaten future generations.

The FQPA, FIFRA, and TSCA’s attempts to regulate harmful substances continue to be hampered by industry influence and slow enforcement, and must undergo reform to adequately protect public health. Carson’s Silent Spring, Watnick’s The Roundup Controversy: Glyphosate Litigation, Non Hodgkin’s Lymphoma and Lessons for Toxics Regulation Going Forward, and Rich’s The Lawyer Who Became DuPont’s Worst Nightmare illustrate how weak regulations and industry loopholes allow dangerous chemicals to persist in the environment. The ideas presented by these works demonstrate a greater need for stronger precautionary measures and significant reforms. The European Union’s REACH policy illustrates a potential start to a complete system overhaul, however, Congress must also increase EPA funding and staffing to accelerate chemical assessments and enforce bans on dangerous chemicals. Additionally, Congress needs to amend FIFRA’s cost-benefit analysis to better prioritize human and environmental safety. With this, grandfathered chemicals must also be reviewed to ensure they have no lasting effect on the environment. Without these reforms, toxic chemicals will continue to pose a threat.

[1] EPA, Summary of the Food Quality Protection Act, https://www.epa.gov/laws-regulations/summary-food-quality-protection-act (last visited May 6, 2025)

[2] EPA, Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Facilities, https://www.epa.gov/enforcement/federal-insecticide-fungicide-and-rodenticide-act-fifra-and-federal-facilities (last visited May 6, 2025)

[3] EPA, Summary of the Toxic Substances Control Act, https://www.epa.gov/laws-regulations/summary-toxic-substances-control-act (last visited May 6, 2025)

[4] EPA, U.S. Environmental Protection, https://www.epa.gov/ (last visited May 6, 2025)

[5] EPA, Summary of the Food Quality Protection Act, https://www.epa.gov/laws-regulations/summary-food-quality-protection-act (last visited May 6, 2025)

[6] See id.

[7] Olga Naidenko, Application of the Food Quality Protection Act children’s health safety factor in

the U.S. EPA pesticide risk assessments. Environ Health 19, 16 (2020). https://doi.org/10.1186/s12940-020-0571-6 (last visited May 9, 2025)

[8] See id.

[9] EPA, Summary of the Food Quality Protection Act, https://www.epa.gov/laws-regulations/summary-food-quality-protection-act (last visited May 6, 2025)

[10] EPA, Basics of FIFRA, https://www.epa.gov/enforcement/federal-insecticide-fungicide-and-rodenticide-act-fifra-and-federal-facilities (last visited May 6, 2025)

[11] Valerie Watnick, The “Roundup” Controversy: Glyphosate Litigation, Non Hodgkin’s Lymphoma, and Lessons for Toxics Regulation Going Forward 30 N.Y.U. ENVTL. L.J. 2, 6 (2022)

[12] FDA, Has the EPA established tolerances for safe use of glyphosate?, https://www.fda.gov/food/pesticides/questions-and-answers-glyphosate#:~:text=Has%20the%20EPA%20established%20tolerances,parts%20per%20million%20(ppm) (last visited May 9, 2025)

[13] John Peterson Myers et al., Concerns over use of glyphosate-based herbicides and risks associated with exposures: A consensus statement, 15 Environmental Health (2016). 

[14] Valerie Watnick, The “Roundup” Controversy: Glyphosate Litigation, Non Hodgkin’s Lymphoma, and Lessons for Toxics Regulation Going Forward 30 N.Y.U. ENVTL. L.J. 2, 6 (2022)

[15] 7 U.S.C. § 136(bb)

[16] National Coalition Against the Misuse of Pesticides v. EPA., 867 F.2d 636 (D.C. Cir. 1989)

[17] National Coalition Against the Misuse of Pesticides v. EPA., 867 F.2d 636 (D.C. Cir. 1989)

[18] 15 U.S.C. §2601 et seq. (1976)

[19] Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times (Jan. 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html

[20] See id.

[21] Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times (Jan. 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html

[22] See id.

[23] Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times (Jan. 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html

[24] See id.

[25] Rachel Carson, Silent Spring 8 (Houghton Mifflin Co. 1962)

[26] See id.

[27] Rachel Carson, Silent Spring 8 (Houghton Mifflin Co. 1962)

[28] Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times (Jan. 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html

[29] Valerie Watnick, The “Roundup” Controversy: Glyphosate Litigation, Non Hodgkin’s Lymphoma, and Lessons for Toxics Regulation Going Forward 30 N.Y.U. ENVTL. L.J. 2, 38 (2022)

[30] Valerie Watnick, The “Roundup” Controversy: Glyphosate Litigation, Non Hodgkin’s Lymphoma, and Lessons for Toxics Regulation Going Forward 30 N.Y.U. ENVTL. L.J. 2, 6 (2022)

[31] EPA, Human Health, http://epa.gov/ingredients-used-pesticide-products/glyphosate (last visited May 6, 2025)

[32] European Chemicals Agency, Understanding REACH, https://echa.europa.eu/regulations/reach/understanding-reach (last visited May 6, 2025)