FIFRA

Lynn L. Bergeson, Timothy D. Backstrom, and Bethami Auerbach, "Something Inside That Shoebox Really Stinks," Focus, February 2017.

Each year, millions of consumers, including large numbers of children, are exposed to unknown quantities of anti-mold pesticides when they open a shoebox. Although the active ingredient in these mostly unregistered anti-mold pesticides is undisclosed and the products are marketed as all natural, many stickers contain allyl isothiocyanate (AITC). These stickers have not been registered for this use, nor has this use, or the resulting exposure to consumers, been reviewed for safety by the U.S. Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), or by any other regulatory agency. 

It’s unlikely that shoe retailers and distributors are aware of the staggering tort liability that could be hibernating in shoeboxes. Someday, millions of unsuspecting and unprotected consumers, including children, could allege they were harmed by products few ever noticed. Even more alarming is that any consumer claims of injury from exposure to an unregistered pesticidal agent cannot be subject to preemption under FIFRA Section 24(b), 7 U.S.C. § 136v(b) because the products are unregistered and have not been reviewed by EPA. This puts U.S. distributors or retailers at risk, especially if they knew that an unregistered pesticide was present in the product and failed to warn consumers. 

Lynn L. Bergeson, "Enlisting Modern Technologies to Ensure a Safe Food Supply," Natural Resources & Environment, Volume 31, Issue 3, Winter 2017.

Nanotechnology, biotechnology, and synthetic biology are the ploughs and tractors of the twenty-first century. These precision farming tools are ensuring a sustainable food supply otherwise threatened by climate change and population growth, among other global challenges. Genetically modified E. coli is being used to produce synthetically derived pheromones, substances beneficially used in agricultural applications to attract, capture, and eliminate harmful pests. Nanopesticides and nanofertilizers are being effectively used in drought-stricken regions, eliminating or minimizing the need for conventional agricultural chemicals. These and similar technologies are essential to enable today’s agricultural professionals to compete with an increasingly unforgiving Mother Nature and an ever-increasing demand for food.

 

These emerging technologies do not come without potential risks, however. How to regulate them is a  subject upon which stakeholders disagree.

 

Against this backdrop, this article considers emerging agricultural technologies, and discusses domestic agricultural oversight systems and their ability to keep pace with innovation. As discussed below, the domestic governance system is capable of addressing comprehensively the potential risks posed by these evolving technologies. The system, however, could be improved by better integration of measures  to educate policy makers and regulators on these technologies, and greater involvement by the private  sector in facilitating a predictable flow of information on these technologies to all stakeholders.

Lynn L. Bergeson, "Evolving Global Chemical Management Programs and Why They Matter," Trends, the ABA Section of Environment, Energy, and Resources Newsletter, November 2014.

Chemicals play a central role in our personal and professional lives. As consumers, we focus keenly on the chemicals in the products we use and with which we come into contact. Globalization and the emergence worldwide of sophisticated chemical management programs invite complex legal, commercial, and scientific challenges. These challenges extend far beyond compliance questions that, by comparison, seem now nostalgically straightforward. Understanding these programs and their evolution can only help inform our judgment as lawyers, consultants, and educated consumers.

Lisa M. Campbell, James V. Aidala, Susan Hunter Youngren, "EPA Guidance on Pesticide Drift Will Affect Product Registrations," CPDA Quarterly, June, 2014.

How to address and manage potential risks posed by pesticide “drift” -- the unintentional movement of some level of pesticide outside of the intended area of application -- has long been a challenging, complex regulatory policy issue. It is difficult to dispute that when applying a pesticide product some small amount may, in some circumstances, move off-site. In other words: “drift happens.” The issue quickly becomes whether, from a risk management perspective, the amount of off-site movement matters. That question is, in turn, heavily dependent on factors specific to the pesticide application at issue, such as the nature of the specific pesticide (e.g., its volatility), the application method used (e.g., aerial or ground application), and climatic conditions. Because many such factors must be considered, the U.S. Environmental Protection Agency (EPA) has found it challenging to devise a “drift policy” or define generally what, if any, level of potential drift is acceptable. This article explores the current situation.

Andrew R. Bourne, Lara A. Hall, Lisa R. Burchi, "EU Biocidal Products Regulation and Its Impact on Industry: A Practical Briefing," Bloomberg BNA Daily Environment Reporter, February 26, 2014.

The European Union Biocidal Products Regulation dramatically changes the way biocidal active substances and biocidal products are regulated under European law. This new regulatory system is subtly different from those in other jurisdictions and EU neighboring countries, and fundamentally redefines biocidal products and treated articles. Companies exporting to the EU as a component of their global business must ensure that their supply chains and product designs are compliant with the regulation. This article presents a snapshot of existing industry norms and anticipates how these standard practices will be affected by the regulation.

James V. Aidala, "Neonicotinoids: EPA’s New Get-Tough Measures," Law360, September 25, 2013.

Throughout 2013, the issue of the contribution of pesticide use to the decline in honeybee colony health, known as colony collapse disorder (CCD), has been increasingly controversial. Of particular concern is the role that a particular class of pesticides, known as neonicotinoids, may play in CCD. While EPA generally maintains its view that pesticides, including the neonicotinoids, are one of many factors in contributing to CCD, in July 2013, it took steps to control more stringently the foliar use of neonicotinoid pesticides, including the ones affected by the EU suspension. EPA's most recent "get tough" approach is a new labeling requirement issued Aug. 15, 2013, and available online, and it holds some additional implications. This article reviews U.S. and European regulatory developments and offers commentary on how new restrictions will affect users and applicators of neonicotinoids.

Lynn L. Bergeson, "Obama’s Second Term: What Does It Mean for US EPA and the Regulated Community?," Environmental Quality Management, Spring 2013.

President Obama won a decisive victory on November 6, 2012, and the forecast for the next four years is clearer now than it was pre-election. This Washington Watch column offers some preliminary observations on what lies ahead for domestic environmental management issues at the legislative and regulatory levels.

Lynn L. Bergeson, "Landmark Ruling Affects Pesticide Makers," Chemical Processing, April 2013.

On February 21, 2013, the Fourth Circuit Court of Appeals issued a landmark decision in Dow Agrosciences v. National Marine Fisheries Service (NMFS). It set aside a Biological Opinion (BiOp) prepared by the NMFS that found use of pesticides chlorpyrifos, diazinon, and malathion could jeopardize certain species of salmon and their habitat. The decision will have significant implications for the government and pesticide registrants alike. Here’s why.

Lisa R. Burchi and Lynn L. Bergeson, "Pesticide Data Compensation in the EU and Canada," Bloomberg BNA Daily Environment Report, November 5, 2012.
The European Union in recent years has promulgated new regulations to set forth the procedures by which pesticides (called biocides and plant protectants in the EU) are registered and how companies can address issues related to the citation and compensation of data submitted that support those pesticide registrations. Canada also recently issued regulations setting forth new requirements on how data used to support a pesticide registration are protected. This article provides a broad overview of these regulations, the new procedures by which biocides and plant protectants will be registered in the EU, and the new ways that data citation and compensation will be addressed in the EU and Canada.
Lynn L. Bergeson, "Harmful Effects?," Manufacturing Today, September 2012.

NRDC challenges EPA’s FIFRA registration of nanosilver.

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