The final version is VERY different from the past renditions, which
would have, in general, weakened the safety protections, as they were, in
federal law. The new version was strongly supported by most major
environmental groups -- NRDC, EWG, WWF, among them, and was opposed by a few
that take very defensive positions whenever the Delaney Clause -- the symbol
-- is up for reform. In the pesticide regulatory arena, the Delaney Clause
has been a problem, a net drag on progress, for about a decade. Some disagree.
The bill passed sets a new uniform standard in setting all
tolerances in food -- "a reasonable certainty of no harm." For
adults/cancer, this means 1 in 1 million additional risk of cancer over a
lifetime, the same as FDA policy in implementing Delaney in all other areas.
Plus, the bill adopts 100% the full slate of key recommendations from the
1993 NAS kids study. These are:
* tolerances must be safe for everyone, including kids. What this means is
that 80% plus of all existing tolerances will have to be adjusted downward,
many by 2 to 3 orders of magnitude. This will profoundly change how
OP/carbamate insecticides may be used in American agriculture. There will
still be important uses of these typically high risk compounds, but
typically as "rescue treatments" when weather/other factors undercuts
effectiveness of biointensive IPM systems for a period of time, and not as
crutches for unsustainable farming systems.
* in setting tolerances, EPA is to add ALL routes of exposure together --
not just all food uses and tolerances, but also exposure through water and
any other common media.
* PLUS, and this is the biggest change, EPA must treat as one pesticide
any/all pesticides whose toxic endpoint in mammals are the same; i.e., all
cholinesterase-inhibiting a.i.s will be regulated as 1 big pesticide; all
triazines (or most); many of the sulfonamide, etc. This will have major
consequences.
* in setting kids standard tolerances, unless EPA has data and makes a
finding that an extra 10-fold safety factor is NOT needed, EPA is to apply
an added 10 fold safety factor.
In short, the bill completely and accurately implements the
recommendations in the 1987 NAS Delaney Paradox report, and the 1993 NAS
Pesticides/Kids report, a step I never thought I would see in my lifetime.
This "deal" on the Hill came together so fast, and moved so fast, that only
a handful of people had seen the final language when the Commerce committee
voted, and still only a few had seen it the next day when the House acted,
and the next day when the Senate acted. Plus, a majority of those who had
seen the language it did not understand what it did, the evolution of the
issues, which were the new/important changes, and where, on the balance,
this bill came down. The bill, while well drafted and very clear to
lawyers/legislative councils, is hard to wade through and it is hard to tell
when various things apply and do not apply. The realization re what the
bill really does is going to sink in quickly over the next few weeks and
some will rejoice, others will not. It will be fun to watch the scurrying
in parts of industry, and their efforts to stop/kill implementation will be
interesting given the House voted (I think) 421-0, and I suspect the Senate
vote was nearly as lop-sided.
The food industry and ag groups, in their press releases, trumpet
that they got what they wanted: uniformity, an end to Delaney in pesticides
regulation, continuation of benefits considerations, and preemption. Only
the first claim is accurate. Delaney hs been extended -- not ended. The
Delaney standard, as it has been implemented for 20 years by FDA, applies to
all tolerances now, for ALL health effects, not just carcinogens that
concentrate in processed food. The benefits provision allows EPA, in the
case of a pesticide causing a non-threshold effect (i.ed. cancer), to use a
2 in 1 million standard instead of 1 in a million standard. This is a minor
concession; it will apply to about 30 percent of all tolerances. It can be
invoked only in situations where availability of pesticide is deemed
essential to food supply/health, or when risks from mycotoxins would be
higher, or when public health issues arise (mosquito control; bacterial
diseases transmitted through food related to pest damage in some way).
Plus, for any tolerance for which the reduction is truncated at 2 in a
million instead of 1 in one million, EPA has to do an annual list to grocery
stores alerting consumers, the lists have to be posted ala Prop. 65, and the
EPA has to include information on alternative ways consumers can seek
out/get safer food.
The preemption authority is very narrow. AFTER EPA sets a tolerance
at the kid-safe level, on the basis of complete data, states are preempted
from setting the tolerance lower. Preemption authority does not apply to
tolerances set under the benefits provision, so a state could set the
tolerance at zero if they wanted. Some environmentalists and grass roots
groups erroneously believe this will undercut local initiative to restrict
harmful uses of pesticides. It will not. It applies ONLY to setting
tolerances, and the authority or precedent is the inter-state commerce
clause. Food is shipped/sold nationwide. If Rhode Island, or California
sets a lower standard, that means food legal everywhere else will be subject
to seizure in the state. There remains great need for state and local
activism, but the appropriate target should be to end state
registrations/uses, impose restrictions etc, because of unique local risk
parameters/exposures.
Passage of this bill is historic. Federal pesticide law has always
lagged the Clean Water Act, the Clean Air Act, and other environmental
statutes in terms of the protections accorded public health. As a result,
the importance of pesticides as a possible public health threat have clearly
risen over the years relative to water and air pollution. But in a week's
work in Congress, pesticide law is now the FIRST to have an explicit,
health-based kids standard in it. Both in the U.S. and internationally,
over the decade their will be an extension of this standard into other
laws/policies, and the world will be a better and safer place for it.
Charles Benbrook 202-546-5089 (voice)
Benbrook Consulting Services 202-546-5028 (fax)
409 First Street S.E. benbrook@hillnet.com [e-mail]
Washington, D.C. 20003