BLOG BY: JULIA RAY
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) was enacted in 1996, with the intention of regulating the federal distribution, sale, and use of pesticides.[i] A pesticide is defined by the Environmental Protection Agency (EPA) in three categories: (1) “any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest,” (2) “any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant,” (3) “any nitrogen stabilizer.”[ii] Section 3 of FIFRA requires all pesticides that are used or sold within the United States to be registered by the EPA.[iii] The registration requirements function like a license issued only to pesticides that “will not generally cause unreasonable adverse effects on the environment.”[iv] This phrase has been interpreted to mean the pesticide use will not result in harmful effects to human health or the environment, “taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.”[v] Additionally, this phrase takes into account any risk that may result from human consumption of pesticide residue in or on food.[vi]
The registration requirements are essential for regulating harmful pesticides that may be carcinogenic, cause negative effects to the nervous system or discomfort to skin or eyes.[vii] However, these requirements are inconsistent when it comes to section 17 of FIFRA.[viii] Section 17 creates an exception to the registration requirement for pesticides manufactured within the United States but intended solely for export.[ix] This exception is illogical because it assumes that adverse effects to human health and the environment will not result from manufacturing pesticides.[x] Pesticide manufacturing facilities can negatively affect workers and local communities, and lead to environmental pollution.[xi] The risks caused by pesticide manufacturing are less than that of pesticide use because pesticide use includes placing the chemicals directly into the environment where they can then travel vast distances by air and water.[xii] However, accidents within manufacturing facilities are always a possibility. One example is the dangerous industrial accident in Bhopal, India where a pesticide manufacturing facility exploded releasing around 30 tons of toxic gas into the environment.[xiii] The toxic gas contaminated the air of the local community resulting in thousands of deaths.[xiv]
The FIFRA regulates the registration, distribution, sale, and use of pesticides,[xv] while rarely mentioning the manufacturing process. An establishment is defined under the act as “any place where a pesticide or device is produced or held for distribution or sale.”[xvi] Section 7 of FIFRA does require each establishment to be registered with the administrator,[xvii] and section 8 requires each establishment to be subjected to periodic inspections.[xviii] However, these inspections only take samples of pesticides and inquire about packaging and labeling, they do not inspect the manufacturing process.[xix] Additionally, the Toxic Substance Control Act (TSCA), which provides authority to the EPA to regulate the “production, importation, use and disposal” of chemicals, excludes pesticides.[xx] This shows the manufacturing process of pesticides is not as heavily regulated and harm may still result from it.
Therefore, if the main goal of the FIFRA is to regulate pesticides to prevent adverse effects on human health and the environment, [xxi] it is implausible to make an exception for pesticides manufactured within the United States but intended solely for export. The current structure of FIFRA allows unsafe and potentially carcinogenic pesticides to be produced within the United States. Although these unregistered pesticides will be prohibited from being sold or used within the United States, that does not mean there is no risk of them having damaging effects on the local human health and environment. In order to combat these inconsistencies, FIFRA should be amended to remove the registration exception for exported pesticides. It is unjust to make people suffer the consequences resulting from the production of harmful pesticides solely because the product is prohibited from being used within the United States.
[i] Summary of the Federal Insecticide, Fungicide, and Rodenticide Act, U.S. EPA, https://www.epa.gov/laws-regulations/summary-federal-insecticide-fungicide-and-rodenticide-act (Sept. 12, 2022) [https://perma.cc/EN5J-JL3W].
[ii] What is a Pesticide?, U.S. EPA, https://www.epa.gov/minimum-risk-pesticides/what-pesticide (Mar. 29, 2022) [https://perma.cc/RT9Z-JEGV].
[iii] Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Facilities, U.S. EPA, https://www.epa.gov/enforcement/federal-insecticide-fungicide-and-rodenticide-act-fifra-and-federal-facilities (Mar. 28, 2022) [https://perma.cc/72VM-3GNY].
[iv] Id.
[v] Id.
[vi] Id.
[vii] Human Health Issues Related to Pesticides, U.S. EPA, https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/human-health-issues-related-pesticides (Oct. 17, 2022) [https://perma.cc/2CPN-65FK].
[viii] 7 U.S.C §136o.
[ix] Id.
[x] See id.; See U.S. EPA, supra note vii.
[xi] Around the World, Pesticide Action Network, https://www.panna.org/frontline-communities/around-world (last visited Mar. 10, 2023) [https://perma.cc/LJ6V-A3LG].
[xii] See id.
[xiii] Alan Taylor, Bhopal: The World’s Worst Industrial Disaster, 30 Years Later, The Atlantic (Dec. 2, 2014), https://www.theatlantic.com/photo/2014/12/bhopal-the-worlds-worst-industrial-disaster-30-years-later/100864/ [https://perma.cc/GUV8-SP4V].
[xiv] Id.
[xv] U.S. EPA, supra note iii.
[xvi] 7 U.S.C §136(dd).
[xvii] 7 U.S.C §136e.
[xviii] 7 U.S.C §136g.
[xix] Id.
[xx] Summary of the Toxic Substance Control Act, U.S.EPA, https://www.epa.gov/laws-regulations/summary-toxic-substances-control-act (Oct. 4, 2022) [https://perma.cc/WW73-6WEG].
[xxi] U.S. EPA, supra note iii.