Thursday, December 15, 2016
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) takes a preventative approach with respect to air, water and land pollution. The Act is administered by the EPA and requires registration of all pesticides intended to prevent, destroy, repel or mitigate certain pests. FIFRA also regulates pesticide use and requires certification of pesticide applicators. The EPA administrator must assess the risks of using a pesticide at the time of registration and the submission of scientific data to aid in that decision. The Act requires that pesticide registrants disclose expert opinions on adverse effects of pesticides to the EPA, along with all other “factual information” so that EPA can reach a proper determination concerning potential registration.
But, are seeds are seeds that are coated with pesticides subject to the FIFRA registration process? Does the coating of the seed with pesticides transform the seed into the functional equivalent of a pesticide that is subject to FIFRA regulation? That’s a key question for agriculture, and it the focus of today’s post.
The Registration Process
At the time of registration, the EPA must classify a pesticide as to use. Classification may be for general use, restricted use, or both. 7 U.S.C. §136a(d)(1)(A). The EPA may also issue an experimental use permit if it determines that the applicant needs the permit in order to accumulate information necessary to register a pesticide under FIFRA. A general use pesticide is one that the EPA determines will not cause “unreasonable adverse effects” on the environment when used as directed or in accordance with commonly recognized practices. Restricted use pesticides are those determined to have the potential to cause adverse environmental effects. In addition, restricted use pesticides may be applied only by individuals who are approved by the EPA as certified applicators. A certified applicator may be either a private applicator or a commercial applicator. To be certified as a private applicator, the applicant must possess a practical knowledge of the pest problems and control practices associated with agricultural operations, being familiar with the proper handling, use, storage and disposal of pesticides and containers as well as related legal responsibility.
The EPA cannot register a pesticide for use (or approve its label) unless it determines the product will not have “unreasonable adverse effects on the environment.” More specifically, in registering any pesticide, EPA must conclude that the product does not pose any “unreasonable risk to man or the environment, taking into account the economic, social and environmental costs and benefits of [its] use.” 7 U.S.C. §136(bb). Pesticides are registered for a five-year period, and are cancelled at the end of that period unless the registrant (or other interested person with the consent of the registrant) requests, in accordance with regulations, that the registration be continued in effect. The sale of an unregistered pesticide is a violation of FIFRA.
The EPA can review pesticides which have previously been registered if there is a concern the product is causing environmental problems or human injury. This procedure is known as a “special review.” For example, the EPA initiated a special review for granular forms of carbofuran (Furadan) in 1985 because of concerns over its poisoning birds. In 1989, the EPA proposed banning granular uses of carbofuran, and in October 1990, the manufacturer agreed to amend the label of the product to delete certain uses.
FIFRA also makes it unlawful to sell or distribute any pesticide that is not registered, that differs in composition from that described in the registration forms, or any pesticide that is misbranded or adulterated. But, are agricultural seeds that are coated with an insecticide a “pesticide”? If so, they can’t be sold or distributed without going through the FIFRA registration process.
The Exemption for Coated Seeds
In a recent case, Anderson v. McCarthy, No. C16-00068 WHA, 2016 U.S. Dist. LEXIS 162124 (N.D. Cal. Nov. 21, 2016), a consortium of individuals and groups with concerns about the effect of pesticide-treated seeds on bees and other pollinators claimed that the EPA failed to enforce the FIFRA with respect to pesticide-treated seeds. They claimed that seeds coated with neonicotinoids (a type of pesticide that distributes throughout the resultant plant and kills insects by direct contact and when the insects eat the plant) are subject to the FIFRA registration process as a regulated pesticide. Importantly, they also claimed that the pesticide-treated seeds can release pesticidal “dust-off” that spreads the insecticide beyond the seeds themselves. As a result, the argument went, the use of such seeds has a systematic and catastrophic impact on bees and the beekeeping industry in the United States. Thus, according to the plaintiffs, the seeds were subject to FIFRA regulation which requires their registration before usage. The court disagreed, noting that a specific 1988 FIFRA exemption applied. Under that exemption, coated seed are not subject to FIFRA if the pesticide itself is registered for coating seeds. The court noted that, in 2003, the EPA published a document in which it said that such seeds were exempt from FIFRA regulation if the pesticide protection of the seed does not extend beyond the seed itself to offer pesticidal benefits or value attributable to the treated seed. Thus, when a treated seed is planted and the seed is treated with a registered pesticide, the seed itself is exempt from FIFRA. In addition, a 2013 EPA guidance document discussed pesticide-related bee deaths and the plaintiff claimed that the guidance document was a final action that needed to be supported by an exhaustive record and is reviewable under the Administrative Procedures Act (APA) and subject to the APA’s rulemaking requirements. The court disagreed.
FIFRA plays a significant role in regulating the use and application of agricultural pesticides. But, at least for now, farmers can continue to buy and plant seeds coated with insecticides without worrying that the seeds themselves are FIFRA-regulated seeds.