Bergeson & Campbell, P.C. serves small, medium, and large pesticide product registrants and other stakeholders in the agricultural and biocidal sectors, in virtually every aspect of pesticide law, policy, science, and regulation.

By Lisa M. Campbell and Lisa R. Burchi

On September 2, 2015, the European Chemicals Agency (ECHA) issued an updated list of biocide suppliers as required under Article 95 of the Biocidal Product Regulation (BPR).  Although prior versions of the list were released previously, this list has current legal effect since Article 95 provides that, as of September 1, 2015, a biocidal product cannot be made available in European Union (EU) markets unless the active ingredient supplier or product supplier is listed for the particular product type (PT) (e.g., PT 5 (Drinking water), PT 19 (Repellents and attractants)) to which the biocide product belongs. 

The purpose of Article 95 in creating a list of persons placing active substances in the EU market is to ensure the equal treatment of persons placing active substances on the market and to avoid “free riders.”  Without the requirements in Article 95, a supplier of an active substance that has not supported the approval of that substance (either through the Review Programme of the biocide directive, or as a newcomer under the BPR) could still enter the market without compensating the entity that undertook the costs and effort to have the active substance listed. 

There will be continued updates and revisions made to the list as new suppliers seek inclusion.  In addition, ECHA states that it received 158 applications from suppliers seeking inclusion on the list, and has created a list of pending applications that ECHA is still processing.  ECHA notes:  “The list of pending Article 95(1) applications should not be confused with the list of relevant substances and suppliers (“Article 95 list”) and the presence of a company (per substance/PT/role) on the list of pending applications does not guarantee that the application will be successful and that the company will ultimately be included in the Article 95 list.”  Updates to the list also are expected for certain substances that were not within the scope of the Biocidal Products Directive (BPD) (e.g., some in situ generated active substances, substances benefiting from derogation for food and feed in Regulation 1451/2007), and for which different BPR notification and inclusion dates apply. 

Although enforcement efforts regarding the Article 95 list have not yet been tested, companies placing biocidal products in EU markets must carefully review the list to ensure that they and/or their suppliers are listed not only for the particular active ingredient and/or product at issue, but also for the product’s particular PT.

There is a one year period, until September 1, 2016, to sell existing stocks for biocide products where the suppliers are not included on the List. 


 

By Lisa M. Campbell, James V. Aidala, and Lisa R. Burchi
 
The Canadian province of Ontario has issued its final regulations under the Ontario Pesticides Act aimed at reducing the area planted with maize and soybean seed treated with neonicotinoid insecticides.  These changes have been made as part of its broader strategy to protect pollinators, and aim to reach an 80 percent reduction in the number of hectares planted with neonicotinoid-treated corn and soybean seed by 2017


The new rules create a new class of pesticides, known as “Class 12 pesticides.”  This class applies to corn seed grown for grain or silage, and soybean seeds treated with the following neonicotinoid insecticides: imidacloprid; thiamethoxam; and clothianidin.  The new regulations will not apply to popping corn, sweet corn, corn used for the production of seed, or soybean seeds planted for the purpose of producing a soybean seed crop of certified status. 


The new system established by these regulations will take effect on July 1, 2015, and be phased in over time.  The elements include but are not limited to the following:

  • Integrated Pest Management Training:  The regulations will require farmers to complete training on integrated pest management methods.  To encourage participation, training will be offered for free until September 1, 2016; after that time, training will be provided at a cost.  After August 31, 2016, any person (e.g., farmer) who purchases neonicotinoid-treated seeds will be required to have completed the integrated pest management training course and received a certification number, which will be valid for five years.
  • Pest Assessment Reports: Farmers wanting to buy and plant neonicotinoid-treated seed on more than 50 percent of the total area of their corn and soybean crop will need to complete a pest assessment report and provide it to the sales representative or seed vendor from which they purchase the seeds.   
  • Requirements for Vendor Licenses for the Sale of Neonicotinoid-Treated Seeds:  The regulations will require companies selling neonicotinoid-treated seeds to obtain a treated seed vendor’s license, notify purchasers that the seed is a neonicotinoid-treated seed, and offer untreated seed for purchase, among other requirements.  Growers will only be able to buy and use neonicotinoid-treated seeds that vendors have put on the "Class 12 Pesticides List," a list updated by August of each year. 
  • Tracking of the Sale of Neonicotinoid-Treated Seeds:  The regulations will require the annual submission of the sales of treated seeds “to ensure an open and transparent system to track progress.”  The Ministry of the Environment will publicly report amalgamated sales and seed treatment data for neonicotinoid-treated corn and soybean seed.

 
The regulations do not include requirements for the transport and storage of Class 12 pesticides.
 
Further information is available at the below links:
 

 
It is important to consider these new requirements in conjunction with those being developed in the U.S.  EPA’s approach to date in considering additional restrictions to neonicotinoid pesticides to protect pollinators appears to focus not as much on reducing the use of products, but instead on controlling and preventing unwanted exposure of pollinators to these products. 
 
In recent weeks, the U.S. government issued a “National Strategy to Promote the Health of Honey Bees and Other Pollinators” on May 19, and on May 28, EPA released for comment: “EPA’s Proposal to Mitigate Exposure to Bees from Acutely Toxic Pesticide Products.” 
 


 

By Lisa R. Burchi

 

On June 19, 2015, the United States District Court for the District of Columbia granted a motion for default judgment by the Non-Dietary Exposure Task Force (Task Force) and confirmed an arbitration award against an Indian pesticide manufacturer, Tagros Chemicals India, Ltd. (Tagros) (Non-Dietary Exposure Task Force v. Tagros Chems. India Ltd., 2015 BL 195490, D.D.C., 1:15-cv-00132, 6/19/15).  The Task Force sued Tagros after Tagros refused to sign a $500,000 settlement agreement negotiated by the parties in the midst of a Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) arbitration proceeding, and continued its refusal to pay after the Task Force successfully moved the arbitrator to issue an award enforcing the settlement agreement.  The Court determined it has jurisdiction because FIFRA “confers jurisdiction on the judiciary to enforce [such] arbitration awards” in federal court and Tagros’ participation in the arbitration allowed the court to exercise jurisdiction over Tagros.  The Court found that the arbitration award must be confirmed in full absent evidence of fraud, misrepresentation, or other misconduct by one of the parties, and no such allegations were put forth.  The Court also granted the Task Force’s motion seeking permission to register this judgment in other district courts based on information that Tagros’ assets were not in the District of Columbia and evidence of assets in other jurisdictions. 

 

This decision adds to a growing number of recent cases where companies have sought judicial enforcement of a FIFRA arbitration award.  Judicial judgments enforcing arbitration awards, in addition to judicial authority to register such judgments in districts where assets are available, are tools data owners are increasingly using to obtain the compensation owed. 


 

By Lisa M. Campbell and Lisa R. Burchi

 

On June 3, 2015, the General Court of the European Court of Justice issued a ruling in Luxembourg Pamol (Cyprus) Ltd. and Luxembourg Industries Ltd. (Luxembourg) vs. European Commission regarding the publication of information by the European Food Safety Authority (EFSA) in its peer reviewed draft assessment report of potassium phosphonate that Luxembourg claimed as confidential. 

 

The case was brought by Luxembourg after EFSA rejected Luxembourg’s claim that certain information be treated as confidential, and not included in the EFSA’s peer reviewed draft assessment report on potassium phosphonate.  The European Commission agreed with EFSA.  EFSA stated that under the Plant Protection Product Regulation No. 1107/2009 (and Article 14 of its predecessor Directive 91/414) and European Union (EU) Regulation No. 199/2011 setting forth procedures for reviewing certain active substances including EFSA’s peer review of draft assessment reports, confidential status cannot be extended to:  information on the composition of the substance at issue; the analysis method for that substance; the analysis methods for residues; the scientific information on the basis for the evaluation and risk assessments performed; and information already in the public domain.  After EFSA refused the confidentiality request, Luxembourg sought reconsideration by the European Commission, who found that the sanitization principles applied by EFSA “reflect a common understanding of EFSA and the Commission of the provisions of Article 14 of Directive 91/414/EEC.”

 

In its decision, the Court dismissed the lawsuit because Luxembourg brought the case against the European Commission when the appropriate party was EFSA.  The Court agreed with the Commission that the decision at issue was an act of and attributable to EFSA, stating that while the Commission “indicated to EFSA the legislation and principles applicable to the requests for confidentiality at issue, the fact remains that the Commission did not apply that legislation and those principles in order to determine those claims itself.”  The Court stated that Article 7(2) of Regulation No. 188/2011 grants EFSA to make confidentiality determinations “in its own right” and that Articles 12(1) and 60 of Regulation No. 1107/2009 show that EFSA is “competent to adopt a decision on a request for confidentiality.” 

 

While this decision does not provide certainty or guidance to industry regarding the type of information that can be claimed, and accepted, as confidential, it does add to a growing pool of cases addressing complex issues regarding the confidential treatment of information related to agrochemicals.  This includes, but is not limited to, the ongoing case following the European Court of Justice’s October 8, 2013, ruling that the European Commission erred by refusing access to documentation about the pesticide glyphosate.


 

By Lisa M. Campbell and Lisa R. Burchi

On May 28, 2015, several United States and Canadian regulatory agencies announced the release of Regulatory Partnership Statements (RPS) and updated annual Work Plans outlining the framework for how these agencies will cooperate and coordinate specified agency actions. 

 

The RPS and Work Plans are the most recent steps since the United States and Canada established the Regulatory Cooperation Council (RCC) in 2011 to align regulatory systems and boost North American trade and competitiveness.  Information about the RCC and the released RPSs is available at: http://www.trade.gov/rcc/.

 

There are now RPSs between the following agencies focusing on four main sectors:  agriculture and food; environment; transportation; and health and personal care products:

 

  • U.S. Food and Drug Administration (FDA) -- Health Canada (HC);
  • U.S. Environmental Protection Agency (EPA) -- Pest Management Regulatory Agency (PMRA);
  • U.S. Occupational Safety & Health Administration (OSHA) -- HC;
  • U.S. Animal and Plant Health Inspection Service (APHIS) and U.S. Food Safety and Inspection Service (FSIS) -- Canadian Food Inspection Agency (CFIA);
  • FDA -- CFIA;
  • U.S. Department of Transportation (DOT) -- Transport Canada (TC);
  • U.S. Coast Guard (USCG) -- TC;
  • U.S. Environmental Protection Agency (EPA) -- TC;
  • U.S. Department of Energy (DOE) -- Natural Resources Canada (NRCan);
  • U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) -- NRCan;
  • EPA -- Environment Canada (EC); and
  • U.S. National Oceanic and Atmospheric Administration (NOAA) -- Fisheries and Oceans Canada (DFO).

 

With regard to agreements between EPA and PMRA for pesticides, the agencies have agreed to a plan and timeframes for three initiatives:

 

  • Joint Template For Project Chemistry Review:  The agencies plan, by March 2016, to commence use of a joint template for product chemistry reviews intended to present study findings in a concise, easily reviewable manner to “facilitate the evaluation of joint review products for new active ingredients, use expansions, and product chemistry only submissions, with the ultimate goal being mutual acceptance of study reviews.”  Prior to commencing use of the joint template, EPA and PMRA intend to conduct a webinar, solicit comments, and initiate a pilot project to test the use of the template. 
  • Neonicotinoid Insecticides:  EPA and PMRA are collaborating on a bilateral pesticide re-evaluation process for neonicotinoid pesticides, and implementing a risk assessment framework.  Harmonizing re-evaluation schedules and aligning risk assessment approachines are ongoing; a progress report will be published by December 2015, but the completion of risk assessments and mitigation actions are not expected until 2017-2018.
  • Joint IT Solutions:  EPA and PRMA are working together to develop information technology submissions and “move towards the establishment of a single application for crop protection products that will be accepted in both countries.”  The technology platforms include an eDossier Builder based on the Organization for Economic Co-operation and Development (OECD) Global Harmonized Submission Transport Standard and an Electronic Confidential Statement of Product Specifications Form Wizard tool (eCSPS Wizard).  The agencies are currently developing these tools and state that the eDossier may be released in 2017, but have not set timeframes for the release of the eCSPS Wizard.

 

EPA, Health Canada, and Environment Canada also have a RPS regarding two initiatives for chemical substances management:

 

  • Significant New Use Rule (SNUR) and Significant New Activity (SNAc):  The agencies are collaborating to develop common approaches for regulatory reporting requirements to improve predictability, understanding, and compliance of SNURs and SNAcs under the Toxic Substances Control Act (TSCA) and the Canadian Environmental Protection Act, 1999 (CEPA), respectively.  Working groups have been established with representatives of industries and nongovernmental organizations, and several meetings and web conferences are scheduled through June 2016 to review potential alignment collaboration opportunities.  A final summary document outlining the agencies’ findings, recommendations, and short and long term implementation plans is expected by December 2016.  A workshop to discuss the final results for both predictability and improved compliance is now planned for January 2017.
  • Risk Assessments:  The agencies are working to align chemical regulatory processes, “specifically through the development of common approaches to address emerging risk issues and jointly consider how the use of novel data can inform the assessment of chemicals.”  The agencies have already formed a Technical Working Group and the first workshop will be held in October 2015 with several web conferences scheduled through December 2016.  A draft assessment collaboration framework will thereafter be developed including:  (1) common high-level principles for chemical risk assessment; (2) identification of opportunities and impediments to joint work; (3) forward plan to build on opportunities (e.g., peer review); and (4) forward plan to explore mechanisms to address impediments.  The final summary document outlining the assessment collaboration framework is expected in December 2017


Discussion

 

The RPS developments are a welcome development for many in industry that conduct business in the U.S. and Canada and are interested in streamlined procedures.  The SNUR and SNAc processes, for example, have many similarities that could potentially be leveraged and aligned.  The working groups that have been formed to review and discuss the TSCA/CEPA initiatives anticipate industry and nongovernmental organizations’ involvement that should assist these agency partnerships.  Continued work with stakeholders and opportunities for comment will be critical moving forward in developing effective regulatory approaches that promote efficiency, safety, trade, and competitiveness.


 

By Lisa M. Campbell, James V. Aidala, and Lisa R. Burchi

 

On May 22, 2015, the European Food Safety Authority (EFSA) issued a call for new scientific information relevant to the evaluation of the risk to bees in the European Union (EU) from the use of the three neonicotinoid pesticide active substances:  clothianidin, imidacloprid, and thiamethoxam (the substances).

 

The call for data complies with the decision taken by the European Commission in May 2013, Commission Implementing Regulation (EU) No. 485/2013, to put in place measures to restrict the use of the substances, which at the time included prohibiting use of the active substances clothianidin, thiamethoxam, and imidacloprid as a seed or soil treatment and for pre-flowering applications on crops attractive to bees and for cereals other than winter cereals.  In May 2013, the Commission also stated that within two years it would initiate a review of any new scientific information. 

 

EFSA is urging national authorities, research institutions, industry, and other interested parties to submit all information on the effects, exposure, and risks of the three substances regarding bees -- honeybees, bumble bees, and solitary bees -- when used as seed treatments and granules.  This can include:

 

  • Literature data, including grey literature and any other data from research activities relevant to the risk assessment for bees for the uses of the three substances applied as seed treatments and granules.  Data that have been provided and identified as relevant by EFSA in its published systematic literature review report need not be submitted, however.
  • Study reports conducted specifically to assess the risk to bees from the three substances applied as seed treatments and granules, and not yet considered under the previous EFSA assessments (EFSA Journal 2013;11(1):  3066, 3067, 3068).
  • National evaluations and/or monitoring data relevant to the risk assessment for bees for the uses of the three substances applied as seed treatments and granules that are available at the Competent Authorities of Member States and not yet considered under the previous EFSA assessments, listed in the above bullet.
  • Data that EFSA stated were not relevant in its published systematic literature review report may be submitted only if accompanied with a scientific rationale supporting their relevance.

 

The notice states that all information should be submitted by September 30, 2015.  Any information submitted can be claimed as confidential by following procedures set forth in Article 63 of Regulation (EC) No 1107/2009.  EFSA will review the material provided from this call for data and offer conclusions concerning an updated risk assessment following receipt of a follow-up mandate from the European Commission.

 

 


 

By Lynn L. Bergeson, James V. Aidala, and Lisa R. Burchi

On March 20, 2015, the United Nations World Health Organization’s International Agency for Research on Cancer (IARC) announced it had completed evaluations assessing the carcinogenicity of five organophosphate pesticides. Specifically, IARC classified the herbicide glyphosate and the insecticides malathion and diazinon as probably carcinogenic to humans (Group 2A), and classified the insecticides tetrachlorvinphos and parathion as possibly carcinogenic to humans (Group 2B). IARC also found there is “limited evidence” that glyphosate can cause non-Hodgkin’s lymphoma and lung cancer in humans.

A summary of the final evaluations, together with a brief rationale, is published online in The Lancet Oncology; the detailed assessments will be published as Volume 112 of the IARC Monographs. IARC’s press release announcing its evaluation is available at http://www.iarc.fr/en/media-centre/iarcnews/pdf/MonographVolume112.pdf.

Monsanto, on behalf of glyphosate task forces in the U.S. and the European Union (EU), immediately voiced its vigorous disagreement with IARC’s conclusions, noting various scientific issues with IARC’s evaluation that resulted in a conclusion that has not been reached following review by the U.S. Environmental Protection Agency (EPA) and in the EU. Monsanto’s statement is available at http://news.monsanto.com/news/monsanto-disagrees-iarc-classification-glyphosate.

The IARC announcement with regard to glyphosate will further energize both sides of the debate about genetically modified organism (GMO) crops, since there are several crops that have been genetically engineered to be resistant to glyphosate. If some occupational risks are identified as needing possible further mitigation, the distinction between food safety issues and occupational risks may be lost in the rhetoric. Opponents of GMO crops and those who support GMO food product labels can be expected to cite the IARC designation regardless of any further clarification or nuance that the scientific debate over the data might provide. Defenders of the technology will insist that not only is the IARC designation wrong and misleading, but it is clearly at odds with numerous other conclusions reached by multiple competent governmental authorities concerning the safety of using glyphosate and especially consuming GMO crops.

Regardless of Monsanto’s rapid and detailed response, “dueling science” views are not helpful towards enhancing public confidence in the safety of the food supply, which is ultimately where this headline will be most influential. That will only add pressure on the review process and conclusions contained in the expected EPA registration review of glyphosate data scheduled for completion in 2015.
 


 

By Lisa M. Campbell, James V. Aidala, and Lisa R. Burchi


On March 2, 2015, European Union (EU) Ministers approved a Directive previously approved by the European Parliament with regard to genetically modified organisms (GMO). EU Directive 2010/0208, entitled Directive of the European Parliament and of the Council amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory, will allow individual Member States to determine whether they will allow, ban, or otherwise restrict the cultivation of GMOs, even in cases where the EU has authorized use of a GMO following the European Food Safety Authority’s (EFSA) assessment of the risks to health and the environment.

Specifically, the Directive provides: “a Member State may adopt measures restricting or prohibiting the cultivation in all or part of its territory of a GMO, or of a group of GMOs defined by crop or trait, once authorised in accordance with Part C of this Directive or with Regulation (EC) No 1829/2003, provided that such measures are in conformity with Union law, reasoned, proportional and non-discriminatory and, in addition, are based on compelling grounds.” The grounds stated include those related to:

* Environmental policy objectives;
* Town and country planning;
* Land use;
* Socio-economic impacts;
* Avoidance of GMO presence in other products without prejudice to Article 26a;
* Agricultural policy objectives; and
* Public policy.

A Member State also can seek to have all or part of its territory excluded from the geographical scope during the authorization procedure for a GMO.

The passage of this Directive is the culmination of years of negotiations between EU Member States that have disagreed over the cultivation of GMOs in their territories. The new rules, which will allow EU countries to opt-out from otherwise approved EU GMOs, are sure to be controversial as Member States, industry, farmers, and the public work out details related to the potentially non-scientific grounds that a particular Member State relies upon in restricting or banning use of a GMO, and as Member States develop measures that allowed GMOs must take to avoid “possible cross-border contamination.”

The legislation will enter into force following its publication in the Official Journal of the EU, which is expected in Spring 2015.

As various members of the EU continue to oppose production of GMO crops, these policies will remain trade irritants to the U.S. and other countries where GMO crops have been widely adopted. This comes as trade negotiations are ongoing and the EU allowance of trade barriers based on the “precautionary principle” remains a major point of disagreement between the EU and the U.S. (with its reliance on “science-based risk assessment policies”). This latest development, which further allows EU Member States to reject GMO crops under various criteria, will not make resolving any current or future trade disagreements any easier.

 


 

By Lynn L. Bergeson

Not a moment too soon, the European Chemicals Agency (ECHA) released a useful and clearly written Practical Guide on Biocidal Products Regulation, ECHA-14-B-19-EN. ECHA is the European Union (EU) agency tasked with implementing the Biocidal Products Regulation (BPR), along with other EU chemical laws and regulations. Adopted in 2012, the BPR revised the Biocidal Products Directive and imposes requirements on producers of active substances and biocidal products. Starting on September 1, 2013, all legal entities producing active ingredients or biocidal products available in the EU are required to obtain an approval for each active substance in the biocidal product and an authorization for the biocidal product itself. The Guide provides a “how to” comply with the BPR to “help companies to better fulfill their obligations and tasks under the BPR.” The Guide is organized into sections and explains the obligations imposed on regulated entities, who is responsible for the obligations, what are the relevant timelines and the deadlines, which are the information requirements and procedures to follow, and the expected results of the process. The Guide also highlights the exceptions and cases for some of the processes, and lists the relevant fees for each obligation.

The Guide contains the following chapters:

■ Approval of active substance;
■ Article 95: list of active substances and suppliers;
■ Technical equivalence;
■ National authorizations;
■ Mutual recognition;
■ Renewal of national authorization and authorizations subject to mutual recognition;
■ Union authorization;
■ Simplified authorizations;
■ Changes of biocidal products;
■ Data sharing; and
■ Appeals (on ECHA decisions).

The following additional chapters are expected to be published at a later date:

■ Renewal of approval of active substance;
■ Review of an approval of active substance; and
■ Research and development.
 

Tags: BPR, ECHA

 

By Lynn L. Bergeson and Christopher R. Bryant

On February 10, 2015, the European Union’s (EU) chief negotiator on the Transatlantic Trade and Investment Partnership (TTIP) agreement released the EU’s initial proposal for the “legal text” of the all-important regulatory cooperation chapter. The text was tabled for discussion with the United States in the negotiating round on February 6, 2015, and released to the public shortly thereafter. The text of the final agreement will be a result of negotiations between the EU and U.S. Among the 16 “Articles” in the chapter is Article 14-Establishment of the Regulatory Cooperation Body,” or RCB, to monitor and facilitate the implementation of the provisions in the TTIP chapter on regulatory cooperation. While short on details, the tone and general content of the chapter is encouraging. The EU’s initial draft contains two sets of proposals: one on good regulatory practices, including transparency, impact assessment, stakeholder participation, and how to make them operational, and another on steps to reinforce and make more effective current cooperation on types of legislation and regulatory initiatives that have a significant impact on EU-U.S. trade or investment. The EU Commission also released on February 10 a document titled TTIP and Regulation: An Overview. The document includes a section on horizontal provisions, including a section on sanitary and phytosanitary measures, and a section on sectoral provisions, including “chemicals.” The documents are available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=1230#regulatory-cooperation.

 


 
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