International Perspectives on Pesticide Law and Ecology
Concerns regarding the relationship between pesticides and ecology are not unique to the United States. Pesticide concerns arise anywhere on the globe where crops are grown or where vector-borne diseases exist—in other words, virtually everywhere on earth. Many of the same concerns related to pesticides in the US are shared by other countries. For example, finding appropriate ways to control pests while minimizing harms to humans and the environment from pesticides are worldwide concerns. However, not all parts of the world face all of the same challenges. The developing world in particular faces a number of unique challenges from both a high need for pest control and high ecological and human health risk from pesticide use.
The Green Revolution, which transformed US agriculture to be chemical input reliant, also helped to create a chemical pesticide addiction in the developing world. As in the US, a combination of government policies and agrichemical industry influence promotes chemical pesticide use in the developing world by relying on “prophylactic calendar-based spraying” to achieve maximum yields.1 Government policies in many developing countries mirror those of the US, with subsidy and crop insurance programs incentivizing industrial agricultural approaches, including heavy reliance on chemical pesticides.2 However, there is great variation in chemical pesticide use among different regions of the developing world.
Many areas of Asia are major users of chemical pesticides. Van Emden and Peakall explain how pesticide use in Asia skyrocketed during the last few decades of the twentieth century.3 By 1990, more than 26 percent of the pesticide world market was in Asia, compared to approximately 22 percent in North America, 6 percent in Africa and West Asia and 11 percent in Latin America.4 Depending on the exact region, most Asian chemical pesticide use is on rice and cotton.
Although chemical pesticides still dominate in most of Asia, government-sponsored Integrated Pest Management (IPM) programs are beginning to play a larger role in many areas. Van Emden and Peakall provide a fascinating example of a shift in government policy in Indonesia that led to a dramatic reduction in chemical use and a marked increase in the adoption of IPM techniques.5 During the Green Revolution, Indonesia was able to dramatically increase its rice production through intensive chemical pesticide use. However, this intensive pesticide use ultimately led to the development of a major pest problem from the brown leafhopper, a previously minor pest. The brown leafhopper pest outbreak led to significant economic loss. Attempts to control the pest with chemical pesticides only exacerbated the problem. In response, during the early to mid-1980s, the Indonesian government adopted IPM and the reduction of chemical pesticide use as the official government policy. Consequently, not only did pesticide use fall by approximately 60 percent, but rice production grew by approximately 15 percent.6
As van Emden and Peakall describe it, in contrast to the widespread pesticide use in Asia, the pesticide culture in most parts of Africa and Latin America is quite varied. In most regions of Africa, agriculture is dominated by small-scale farmers. The high cost of chemical pesticides, and, in some areas, the limited availability of these chemicals, limits their use by the small-scale farmers.7 Nevertheless, pesticide use is widespread on larger farms and commercial cooperatives.8 Due to the vast geographical, climatic, economic, and cultural diversity in Latin America, as well as the varying access to international markets, pesticide use varies greatly from region to region.9 Although in recent years there has been some movement toward IPM and even organic farming in the developing world, many farmers in developing countries are subject to even greater constraints than their American counterparts. In many parts of the developing world, basic research on pests, economic thresholds, and IPM practices is inadequate.10 Even where research exists, there is a great need for better organizations to disseminate technical knowledge and train farmers in IPM, as well as financial support to help facilitate a shift to IPM.11 IPM requires detailed knowledge and ongoing monitoring, which, although perhaps worthwhile in the long-run, is a major barrier to its initial adoption by the average farmer trying to eke out a living who is comfortable with predictable spraying regimes that do not require ongoing monitoring or specialized knowledge.12
One controversial issue with regard to pesticide use in the developing world is whether pesticides that are banned or severely restricted in the US or other developed countries should be exported to countries in the developing world. For example, for decades after the 1972 banning of DDT in the US, American pesticide manufacturing companies continued to manufacture DDT and export it to the developing world. Oftentimes, in what has come to be known as the “circle-of-poison,” pesticides banned for use in the US that are nevertheless exported to developing countries ultimately end up coming back into the US as residues on foods. While pesticide residues on food are not permitted unless in compliance with a tolerance established under the Federal Food, Drug, and Cosmetic Act (FFDCA),13 testing of imported foods to detect unpermitted pesticide residues is very limited and there is thus certainly some level of illegal residue entering the US on imported food. The larger issue, however, is whether it is appropriate for US manufacturers to sell products deemed to be too risky for the US to other parts of the world. Of the approximately 1.2 billion pounds of pesticides produced in the US per year, approximately 300 million pounds are exported out of the US to other parts of the world. At the same time, approximately 200 million pounds of pesticides are imported into the US from other countries, resulting in a net supply of 1.1 billion pounds per year.14
US Law on the Import and Export of Pesticides
FIFRA section 17 expressly addresses requirements for pesticide export and import in the US.15 EPA regulates the import and export of pesticides under FIFRA. The importation of pesticides is governed by FIFRA section 17(c).16 All imported pesticides intended for use in the United States must be registered as required by section 3 of FIFRA before being permitted entry into the US.17 As is required for any pesticide registration, imported pesticides must be properly labeled in accordance with EPA’s labeling regulations adopted pursuant to FIFRA, must not be adulterated if intended for animal feed or food use, must have tolerances or exemptions from tolerances under the FFDCA, and must otherwise comply with all other legal requirements under FIFRA.18 When importing pesticides into the US, the importer is required to provide a “Notice of Arrival (NOA) of Pesticides and Devices” to the appropriate EPA Regional Office.19 Once the EPA Regional Office has approved the shipment, EPA returns the NOA form to the importer.20 Upon arrival of a shipment of pesticides or devices, the importer must present the approved NOA form to the district director of Customs at the port of entry.21 EPA’s Office of Enforcement and Compliance Assurance (OECA) is primarily responsible for enforcement of pesticide importing requirements, with the support of EPA’s Regional Offices.22
In contrast to the full suite of FIFRA and FFDCA regulations that apply to pesticides imported into the US, pesticides exported from the US to other countries are subject only to very limited regulation under FIFRA.23 These limited regulations are primarily in the form of notification. Unregistered pesticides—i.e., pesticides that are not approved for use in the US may be manufactured in the US and exported subject to the requirements of FIFRA section 17(a). Specifically, FIFRA section 17(a) provides, “[N]o [unregistered] pesticide … intended solely for export to any foreign country shall be deemed in violation of this subchapter … if prior to export, the foreign purchaser has signed a statement acknowledging that the purchaser understands that such pesticide is not registered for use in the United States ….”24 The requirement is shipment-specific for a particular exporter, product, and purchaser. EPA has stated that it is placing the “highest priority on timely notification for two categories of exported pesticides […]: 1) pesticides on the International list of Prior Informed Consent (PIC), most of which have been banned or are severely restricted in the US; and 2) other pesticides banned and severely restricted in the US for health or environmental reasons, which are not on the PIC list.”25
While FIFRA section 17(a) addresses requirements for exporting any unregistered pesticide, FIFRA section 17(b) addresses the export of pesticides for which EPA has canceled or suspended the registration. Specifically, FIFRA section 17(b) provides, “[w]henever a registration, or cancellation or suspension of the registration of a pesticide becomes effective, or ceases to be effective, the Administrator shall transmit … notification thereof to the governments of other countries and to appropriate international agencies.”26 Thus pesticides that EPA has determined pose unreasonable adverse effects on the environment and thus are not permitted to be used in the US, may still be legally exported as long as EPA has provided a one-time notification of its regulatory action to other governmental and international agencies.27 Unlike the foreign purchaser acknowledgement requirement, however, there is no requirement that the foreign government sign any type of acknowledgement statement, and the notification is not provided on a per shipment basis.28 In other words, FIFRA section 17(b) merely requires a notification of EPA regulatory action and leaves it completely to the discretion of the importing country as to whether they allow the import or impose any additional requirements.
In addition to the foreign purchaser acknowledgement statement and notification requirements of sections 17(a) and (b), as described above, EPA by regulation imposes certain labeling requirements for any pesticide intended solely for export from the US.29 Specifically, pesticides intended solely for export are not required to be registered provided the pesticides are labeled “Not Registered for Use in the United States,” meet certain minimal labeling requirements, are labeled in both English and the language(s) of importing country, and the exporter complies with specified record-keeping requirements.30 Although EPA’s restrictions on pesticide exports are limited, for many years international organizations have made attempts to impose additional requirements on pesticide exports and to impose other international standards to address the risks of pesticides.
International Agreements on Pesticides
International efforts to address the risks of pesticides, primarily focused on the human health effects, date back to the early 1960s when the World Health Organization (WHO) established the WHO Pesticide Evaluation Scheme (WHOPES). This scheme, which has been updated in more recent years, is comprised of a multi-phased testing program, ranging from laboratory studies to large-scale and epidemiological studies to assess the efficacy, human health impacts, and environmental impacts of pesticides.31 However, international efforts to go beyond research and regulate the sale or use of pesticides did not commence until the mid-1980s, and significant international agreements relating to pesticides were not reached until the 2000s. Many of these agreements still have not been fully implemented. In general, most of the international agreements on pesticides include a push to “harmonize” regulatory standards. One concern with such harmonization is that countries with higher standards will have to lower their standards to harmonize with others.
The United Nations Food and Agriculture Organization (FAO) International Code of Conduct on the Distribution and Use of Pesticides
One of the earliest international attempts to address concerns with the export of pesticides was the United Nations Food and Agriculture Organization (FAO) International Code of Conduct on the Distribution and Use of Pesticides.32 This is a voluntary code of conduct for pesticide management practices that provides standards for public and private entities engaged in, or associated with, the application or distribution of pesticides.33 The Code contains provisions for reducing health and environmental risks, and encourages governments and the pesticide industry to cooperate to reduce such risks. First published in 1985, the code was updated in 1989 to include Prior Informed Consent (PIC) procedures. The FAO Code was again revised in 2002 to reflect changes in international policy related to the adoption of the Rotterdam Convention on the Prior Informed Consent procedure in 1998. The most recent, 2005, revision adopts an expanded definition of Integrated Pest Management (IPM) and incorporates a life-cycle approach to pesticide management.34 The PIC procedures in the FAO Code became the model for the later adoption of mandatory PIC procedures in the 1998 Rotterdam Convention discussed below.
The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
One of the most important international agreements relating to the import and export of pesticides throughout the world is the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.35 This multilateral treaty seeks to promote shared responsibilities regarding the importation of hazardous chemicals, including pesticides, and to promote the open exchange of information.36 The treaty encourages exporters of hazardous chemicals to comply with labeling requirements, to include safe handling instructions, and to notify buyers of any known bans or restrictions.37 Parties to the treaty are free to make their own decisions whether to allow or ban the importation of chemicals listed in the treaty.38 Exporting countries are required to ensure that producers within their jurisdiction comply with treaty requirements.39 One of the most significant features of the treaty is that it creates legally binding obligations requiring member countries to implement the Prior Informed Consent (PIC) procedure.40 The PIC procedure is based on the voluntary PIC procedure initiated by the original FAO International Code of Conduct on the Distribution and Use of Pesticides in 1989.41 The Rotterdam PIC process requires exporters of pesticides covered under the Convention, which include pesticides that have been banned or severely restricted by Parties and pesticides that Parties have notified for inclusion, to obtain the prior informed consent of an importing country before exporting to that country.42 A new chemical is considered for inclusion under the Convention when two or more countries in specified regions of the world nominate the chemical for inclusion.43 The Conference of the Parties (COP) makes decisions regarding the inclusion of new chemicals in Annex III of the Convention.44 Once a chemical is listed in Annex III, a “decision guidance document” (DGD) containing information about the chemical and any regulatory decisions banning or restricting it is circulated to all Parties.45 Currently, there are 40 chemicals listed in Annex III of the Convention and therefore subject to the PIC procedure, including 25 pesticides, 4 severely hazardous pesticide formulations, and 11 industrial chemicals.46 The Rotterdam Convention website provides information on the current substances listed under the Convention.47 Once the Parties receive the DGD, they have nine months to draft an interim or final response regarding whether to allow future import of the chemical and whether any conditions will apply to its import.48 Importing countries’ decisions must be trade-neutral and therefore must “apply equally to domestic production for domestic use as well as to imports from any source.” The PIC Secretariat circulates the import decisions and the Convention requires exporting country Parties “to take appropriate measures to ensure that exporters within its jurisdiction comply with the decisions.”49 While the Convention primarily relates to chemicals and pesticides that Parties have “banned or severely restricted,” it is important to note that inclusion under the Convention does not represent a global “ban” on the listed substances.50 The PIC process therefore enables Importing Parties to make informed decisions, based on information provided through the Convention, regarding whether to allow import of the chemical or pesticide in question.51
In addition to the PIC procedure itself, the Convention also includes a number of requirements related to pesticide export. A Party that plans to export a chemical that is banned or severely restricted for use within its jurisdiction must, prior to the first shipment and annually thereafter, inform the importing Party that such export will take place.52 In addition, when exporting chemicals for occupational use, exporting Parties are required to ensure that up-to-date safety information data sheets are sent to the importer.53
The Rotterdam PIC process was adopted on September 10, 1998 in Rotterdam, the Netherlands, and entered into force on February 24, 2004.54 Seventy-two countries including the US have signed the Rotterdam convention, though to date, the United States is a Signatory, but not a Party.55 For the United States to become a Party, the Senate must ratify the Convention and Congress must pass implementing legislation.56 It is EPA’s stated intention to make the US export notification program compatible with the international process contemplated under the Rotterdam Convention, while still meeting domestic legislative requirements.57 EPA also states that, “revisions to the US export notification program will be considered in the context of implementation of the PIC Agreement.”58