Dow AgroSciences wins a partial victory on 2,4-D

Monday, October 3, 2011

As the result of a legal settlement, Quebec agrees that the herbicide doesn't pose unacceptable risks, provided label instructions are followed. But cosmetic bans on its use may still continue

by SUSAN MANN

Quebec can keep its ban on non-crop uses of 2,4-D, but it had to drop a controversial description of the product as dangerous as a result of the settlement of a legal challenge by the herbicide's manufacturer.

Dow AgroSciences LLC launched its challenge in March 2009, alleging Canada had breached its obligations under sections of the North American Free Trade Agreement (NAFTA) after Quebec banned 2,4-D in April 2006. The two sides reached a settlement in May. As part of it, Dow waived its $2 million monetary damage claim and legal actions while Quebec has to agree that products containing 2,4-D do not pose an unacceptable risk to human health or the environment, provided the label instructions are followed.

Peter MacLeod, vice-president of chemistry for CropLife Canada, a chemical industry lobby group, says that means "they (Quebec) acknowledge the product itself does not pose a risk to human health or the environment."

MacLeod adds: "They've admitted the reason for banning it was not based on any type of health or environmental risk. It was banned for some other reason that they don't get into."

He describes the settlement as a partial victory for Dow because Quebec banned the product for reasons unrelated to health and safety and the province points back to Health Canada's Pest Management Regulatory Agency (PMRA) as the authority in evaluating and approving these products in Canada. But it's still problematic for the industry that the province and others can retain their cosmetic pesticide bans.

The PMRA, a branch of Health Canada, is responsible for pesticide regulation in Canada.

MacLeod says the problem with governments and municipalities implementing bans on cosmetic use of pesticides is that people may think that, if there's a problem with using pesticides on lawns, their use should also be unacceptable in golf courses, farms, forestry and any other areas the products are used.

Bans by municipalities and provinces just create a misconception. "It may seem like a simple thing they're doing by banning these products for lawns, but it really could have serious consequences down the line," MacLeod explains. Those consequences include creating confusion in people's minds and eventually leading people to think all pesticide use should be banned.

Brenda Harris, Dow AgroSciences Canada's regulatory and government affairs manager, says in an email that Quebec suggested publicly its decision to ban cosmetic uses of 2,4-D was driven by public health concerns. "This is contrary to the scientific conclusions reached by the PMRA with regard to products containing 2,4-D. As part of our settlement agreement, Quebec has acknowledged that it is in agreement with PMRA that herbicides containing 2,4-D are safe when used in accordance with label instructions."

But the Canadian Environmental Law Association has a different take on the settlement.

The association works to protect human health and the environment by seeking justice for those harmed by pollution and by working to change policies so as to prevent problems. It doesn't have an overall position against pesticide use, but it is greatly concerned because of the risks to human health and the environment. It supports a position to reduce exposure and risk, and find alternatives.

Executive director Theresa McClenaghan says that, as part of the agreement, the Quebec government brought the language of its ban more in line with the federal statute by no longer describing 2,4-D as a dangerous product. But it didn't call the controversial pesticide safe either.

She says pesticides in Canada cannot be described as safe because "they're meant to interfere with living organisms." Instead, their use is deemed acceptable when label directions are followed. The label is a regulatory instrument in Canada similar to a permit for other environmental emissions.

The Quebec government has given nothing away legally with this agreement, and existing or future municipal and provincial pesticide bans are unaffected, McClenaghan says. In Canada, provinces have the jurisdiction to determine use. Canada has a tri-level regulatory approach to pesticides and, just because there's a registration system at one level, that doesn't take away the other level's jurisdiction.

The settlement saves face for Dow and supports the view that Dow wouldn't have won its case, she says. Pesticide bans are well within the environmental exception provisions of NAFTA.

McClenaghan says Dow's NAFTA challenge appeared to be an attempt to scare off Ontario and other provinces from cosmetic pesticide bans. "The small amount of money claimed by Dow supported my view."

As for agriculture, Ontario's cosmetic pesticide ban has reached into its territory because farmers can't apply pesticides on their own lawns and gardens, but can use them for crops. Still, there aren't any plans in Ontario to extend the cosmetic pesticide ban, which came into effect April 22, 2009, to farmers' fields. Kate Jordan, spokesperson for the Ontario environment ministry, says agriculture is exempt and, since there are already stringent rules in place for how farmers can handle, store and apply pesticides, there aren't any plans to include agriculture in the ban.

Alliston-area potato farmer Chris Kowalski, first vice-chair of AGCare, a coalition of farm groups, isn't so sure. If the provincial Liberal government is re-elected this fall,

"agriculture had better start looking over its shoulder." That's because the government has already implemented a cosmetic pesticide ban and there was "no science behind that."

Kowalski describes Ontario's cosmetic pesticide ban as "asinine" and questions why golf courses and provincial fields used for national sporting events should be exempt. BF