In November 2021, Senator Cory A. Booker announced the ‘Protect America’s Children from Toxic Pesticides Act’ of 2021 (PACTPA). The bill would amend the Federal Insecticide, Fungicide, and Rodenticide Act of 1972 (FIFRA) to protect children and the environment from dangerous pesticides.
According to Senator Booker, FIFRA has many loopholes that promote the interests of the pesticide industry at the expense of the safety of people and the environment. For instance, pesticides such as paraquat, organophosphate and neonicotinoids have been scientifically linked with harm to people and the environment, but they’re still used in the country. In fact, a third of the pesticides used in the U.S. are already banned in the European Union.
If passed, the act would also empower citizens to petition the U.S. Environmental Protection Agency (EPA) to designate certain pesticides as dangerous. Local communities would also be permitted to enact protective legislation to restrict use without being preempted by state law. At the same time, the act would prohibit the use of pesticides banned in Canada and the European Union until the EPA reviews them.
The Environmental Protection Agency is mandated to oversee the registration of pesticides guided by FIFRA (the act that controls the sale and use of pesticides in the U.S.). Before registration, the applicant must demonstrate that using the pesticide as specified is safe, i.e., the pesticide does not cause unreasonable adverse effects, such as posing a risk to people and the environment, or the residue from the use of the pesticide does not cause human dietary risk.
However, there have been loopholes that have allowed the continued use of dangerous pesticides despite the existence of scientific evidence showing they’re harmful to people and the environment. Following these concerns, Congress made the following findings:
- The EPA does not incorporate updated scientific understanding regularly to protect the environment and people from toxic pesticides as required by FIFRA.
- The United States is not proactive in protecting people and the environment from dangerous chemicals, as evidenced by the continued use of pesticides that have been prohibited in the European Union.
- The EPA allows the sale of potentially dangerous pesticides after their registration has been suspended or canceled.
The EPA uses emergency exemptions to keep pesticides in the market for an extended duration without a comprehensive registration.
- Prohibition of the EPA from requiring disclosure of inert ingredients in pesticides endangers people and the environment since the inert ingredients include carcinogenic and toxic chemicals and can account for up to 99% of the product.
- Exposure to paraquat causes heart failure, damage to brain cells, liver failure, lung scarring, and kidney failure, and increases the risk of Parkinson’s disease.
- Scientific evidence shows organophosphate pesticides can cause damage in children. Federal agencies (National Marine Fisheries Service and United States Fish and Wildlife Service) have also found that organophosphate pesticides threaten the survival of 97% of endangered species.
- Neonicotinoid pesticides contribute to the rapid decline of pollinators, deterioration of their health, and impairment of their foraging behavior.
- States block local communities from enacting pesticide restrictions.
- Farmworkers face disproportional exposure to and harm from pesticides, and they have inadequate safeguards and protection compared to industrial workers.
To address the above findings, the bill proposes the following provisions:
Ending Indefinite Delays on Review of Dangerous Pesticides
This provision seeks to end registration review delays that allow some pesticides to continue being used without undergoing the required reregistration after 15 years. It empowers interested individuals to petition EPA to review potentially dangerous pesticides.
Within 90 days of receiving the petition, the administrator should make a finding based on relevant evidence, including epidemiological studies or data, peer-reviewed literature, or data generated by a federal/state agency or an agency of a foreign government. If the product warrants designation as a dangerous pesticide, it shall be suspended immediately, including a ban on selling existing stocks. Similarly, if the administrator fails to suspend the pesticide registration, it shall be permanently canceled by operation of law.
In this regard, a dangerous pesticide refers to a pesticide product or an active ingredient that may be carcinogenic, acutely toxic, an endocrine disruptor, cause harm to a fetus or pregnant woman, or cause developmental or neurological harm.
Emergency Review of Pesticides Prohibited in Other Nations
The bill also seeks immediate suspension of pesticides registered and used in the United States but banned by the European Union, Canada, or one or more countries in the European Union. Upon suspension, the administrator will be required to complete an expedited review of the ban. Unless the ban is erroneous, registration of the suspended pesticide shall be canceled within two years of completing the review.
The administrator shall consider all relevant evidence when reviewing the ban, including epidemiological studies or data, peer-reviewed literature, or data generated by a federal/state agency or an agency of a foreign government. However, the review cannot factor in the economic analysis of the pesticide’s benefits or costs of continued registration.
Prohibition on the Use or Sale of Suspended or Canceled Pesticides
This provision seeks to amend section 6(a) of FIFRA to require the administrator to prohibit the sale or use of existing stocks of pesticides that have been suspended, canceled, or set aside by judicial decree.
Ending Abuse of Emergency Exemptions
The bill seeks to control emergency exemptions by limiting the use of exempted pesticides at a given location. According to the provision, the administrator shall not grant an emergency exemption for the same pesticide product or active ingredient in the same area for more than two years within 10 years. Also, the administrator shall not be able to grant emergency exemptions for unregistered or conditionally registered pesticides.
Transparency for Inert Ingredients
The bill amends section 2(n) of FIFRA to require pesticide labels to include a list of the inert ingredients, names and percentages of each active and inert ingredient. If applicable, pesticide manufacturers should also disclose if the product contains an inert ingredient determined (by the administrator, state/federal agency) to be carcinogenic, an endocrine disruptor, acutely toxic, or likely to cause harm to a fetus or a pregnant woman, or developmental or neurological harm.
Cancellation of Paraquat
The bill seeks to deem paraquat likely to cause unreasonable adverse effects to humans and hence unsafe for use. Once the act is enacted, all paraquat registration shall be canceled immediately and permanently by operation of law. The administrator will also be required to revoke any tolerances and exemptions that allow the presence of paraquat or chemical residue in food within six months of the act’s enactment.
The sale of existing stocks of paraquat shall also be prohibited, and no future registrations or emergency exemptions of the pesticide will be allowed.
Cancellation of Registration of Organophosphates and Neonicotinoids
Organophosphates have been shown to cause neurodevelopmental damage in children. Similarly, neonicotinoids are harmful to pollinators and responsible for pollinator decline worldwide. They have already been banned or restricted in Canada and the European Union.
Once the act passes, all pesticides classified under organophosphates or pesticide products containing one or more of the active ingredients of neonicotinoid pesticides (clothianidin, imidacloprid, dinotefuran, thiamethoxam, flupyradifurone, sulfoxaflor, acetamiprid) shall be deemed to cause unreasonable adverse effects to humans and designated as toxic pesticides.
Any registration of pesticide products under organophosphates or neonicotinoids shall be canceled immediately and permanently by an operation of law. The administrator shall also revoke tolerances and exemptions that allow the presence of organophosphate or neonicotinoid, or chemical residue in food within six months of enacting the act. The sale of existing stocks shall also be prohibited, and no future registrations of the pesticide or emergency exemptions will be allowed.
Empowering Communities to Protect Themselves from Pesticides
The bill also seeks amendment of section 24 of the FIFRA to empower communities to protect themselves from harmful pesticides. Local communities will be able to pass restrictions on pesticides without less protective state legislation preempting them.
Protecting Farm Workers from Dangerous Pesticides
This act would protect farmworkers from dangerous pesticides by requiring the pesticide product labels to be printed in both English and Spanish. Where the product is being used by more than 500 people who speak the same language, which is not English or Spanish, the administrator will be required to provide a translation of the label in that language on the EPA website.
If a farmworker is exposed to a pesticide product, an active ingredient, a tank mixture of multiple pesticides, a degradate, or a metabolite, resulting in an injury that requires medical attention, causes permanent disability/loss of function, or death, the employer will be mandated to report the incident. Employers who fail to report an incident shall pay a penalty of $1,000 per day starting from the eighth day after the incident occurs.
This provision also mandates the administrator to deploy an online system within 60 days of the act’s enactment to facilitate reporting farmworker incidents. Farmworkers will also be able to report anonymously to avoid retaliation from their employers. Retaliating against a person who reports an incident shall attract a maximum criminal penalty of $100,000, six months of imprisonment, or both.
An employer who knowingly fails to report an incident or coerces a farmworker not to report an incident shall also face a criminal penalty of up to $100,000, six months of imprisonment, or both. The administrator will also be required to implement a reward system providing a monetary award of at least $25,000 per incident that leads to the identification of employers who have failed to report an incident.
Authority to Bring Civil Action
The bill seeks to empower citizens to bring civil action against EPA. Once the act is enacted, any person will be able to sue the administrator for failure to comply with provisions. The U.S. District Courts shall have exclusive jurisdiction over such civil actions.
The act also provides for employee protection. Employers will be prohibited from discharging or discriminating against an employee (concerning employment terms, conditions, compensation, or privileges) for commencing, seeking to commence, testifying, or participating in any legal proceeding under the act.
Opposition to the PACTPA
Following the bill’s introduction, several groups have risen to oppose it. For instance, in January 2022, a coalition group sent a letter to Congress expressing their objection to the proposed act (S. 3283). The coalition identified themselves as groups that rely on the availability of pesticides to produce America’s food, specialty crops, biofuel, and fiber.
They argued that they believed EPA was up to the task of registering and reregistering pesticides as required by FIFRA, so enacting the act would repeal decades of scientific progress and federal regulation. According to them, such an action would undermine the work of EPA’s career scientists in pesticide safety evaluation and overseeing registration and use. As a result, the move would jeopardize innovation and the availability of pesticide products.
Despite the opposition, there have also been breakthroughs. For instance, in August 2022, EPA published (in the Federal Register) a notice of receipt of requests for voluntary cancellations of some pesticide registrations. They issued the notice per FIFRA requirements, and the registration cancellations were set to be effected after the expiry of the comment period, which was on 28th September 2022. Among the requested, voluntary deregistrations were products containing paraquat.
Product Liability Claims Involving Use of Paraquat
Paraquat is a highly toxic pesticide. According to the EPA, one sip can kill. Many cases of accidental ingestion have been reported, in which the victims die within days of consuming it. Chronic exposure to paraquat also increases the risk of Parkinson’s disease. Other common conditions from exposure to the pesticide include kidney failure, damage to brain cells, heart failure, lung scarring, and liver failure.
If you have been diagnosed with a medical condition such as Parkinson’s disease after exposure to paraquat, you can file a product liability claim to seek compensation for the damages incurred. An experienced product liability lawyer should be able to evaluate your case and determine whether the manufacturer is liable. If they establish you’re eligible for compensation, they can help you develop your case and file a compensation claim.
Have you been diagnosed with a condition related to paraquat exposure? Or have you lost a loved one after exposure to paraquat pesticide? Call us or fill out our contact form for a free case evaluation.