The Nation's New Pesticide Law: Memorandum
To: Citizen Action, affiliates, and interested parties
From: Richard Wiles
Subject: Comparison of the new pesticide law with previous provisions of the Food Drug and Cosmetic Act
This memo spells out some of the major improvements contained in the new pesticide law. They are particularly notable in contrast to the industry supported legislation which had 240 co-sponsors in the House immediately prior to the negotiations that produced the final bill.
Protection of Infants and Children
Old law -- No specific protection of infants and children required.
Industry bill -- Protection of infants and children was "encouraged" but not required.
New law -- Strictly mandates protection of infants and children, and requires an explicit incorporation of the recommendations of the National Academy of Sciences Committee on Pesticides in the Diets of Infants and Children when setting tolerances for pesticides in food. Specifically, when setting tolerances the risk assessment must include all routes of exposure to the pesticide, the higher exposure per unit of body weight of infants and children, the toxicity of and exposure to pesticides and other compounds that act via a common toxic mechanism, and the increased vulnerability of infants and children. For all non-cancer effects the Administrator must apply an additional 10 fold safety factor to tolerances set using the above criteria, unless the Administrator makes an explicit determination that a different safety factor will adequately protect infants and children.
Old law -- For pesticides on raw (fresh, non processed) food, tolerances were required to protect the public health, but economic benefits were considered in determining allowable levels. Under the Delaney clause, residues of cancer causing pesticides that concentrated (levels increased) in processed food were prohibited (about 80 out of 7,000 current tolerances). For all other pesticides in processed foods, including cancer causing pesticides that do not concentrate in processed food (residues stay at the same level or decrease), raw food tolerances applied, and the Delaney clause prohibition on carcinogens.
Industry bill -- Repealed Delaney and substantially weakened the basic health standard in the Food Drug and Cosmetic Act by replacing it with a undefined negligible risk standard. The bill further required the EPA, when setting food tolerances, to balance public health protections against the economic benefits to pesticides users.
New law -- Replaces the old contradictory standards (risk/benefit for most foods and the Delaney clause for a small number of processed foods where levels of carcinogenic pesticides increase during processing) with a uniform health-based safety standard that applies to all foods, with strict protection of infants and children in accordance with the recommendations of the National Academy of Sciences. The standard is defined as a reasonable certainty of no harm, which has a substantial administrative history (reaffirmed in the committee report), of being defined as a one in one million risk of cancer and a one hundred fold safety factor for non-cancer effects.
Old law -- Benefits were considered when setting tolerances for all pesticides in raw foods. For non carcinogenic pesticides that concentrated in processed foods, section 409 (food additive) tolerances were required, and consideration of benefits was prohibited. There were at most several hundred food additive tolerances for pesticides that do not cause cancer and concentrate in processed foods.
Industry bill -- Mandated economic benefits consideration for all pesticide tolerance setting, and allowed narrow economic interests, for example economic hardship for just one region of the country, to justify higher than negligible risks to infants and children.
New law -- Benefits considerations are prohibited for all non-cancer effects. For carcinogens, benefits can justify a lifetime risk of two times the reasonable certainty of no harm level. However, the benefits exemption triggers a right to know provision under which grocery stores must display a publication issued annually by the EPA which lists all pesticides that do not meet the safety standard and the crops on which they are used. Further, benefits can never justify exposing infants and children to risks beyond those allowed by the core health standard of the law.
Right to Know
Old law -- Consumers had no right to know about pesticide residues in food.
Industry bill -- No provision.
New law -- The EPA must prepare an annual list of pesticides that fail to meet the health standards in the Act (pesticides that receive a special tolerance due to economic benefits considerations) and a list of the crops on which they are used. Grocery stores must publicly display this information.
Uniformity of Tolerances
Old law -- States were not pre-empted from setting tolerances different from the EPA.
Industry bill -- Proposition 65 in California was overturned, and all states were prohibited from setting food tolerances different from the federal standards in all situations.
New law -- States are pre-empted from setting tolerances different than those that meet the full requirements of the Act, with four broad exceptions. First, Proposition 65 is protected and the right of any state to post warnings or require labels regarding any pesticide in food is explicitly affirmed. Second, the states retain the right to set tolerances at any level (including zero) for pesticides that receive the special benefits exception to the core health standard of the bill. Third, the bill contains an expedited petition process for any pesticide that may pose a significant public health threat to the citizens of a state. Under this authority, the states can petition the EPA Administrator for a separate tolerance. If the Administrator does not respond within 30 days the tolerance becomes effective. Fourth, any state may petition the EPA for a separate tolerance for any pesticide on the grounds that the tolerance is justified by local conditions. Finally, any state may ban the use of a pesticide under FIFRA.
Priority Review of Tolerances that Pose the Greatest Risk to the Public Health
Old law -- There is a schedule for review of newly generated health and safety data for all pesticides, the so-called reregistration process ongoing under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA). This process does not require the agency to review food tolerances, nor is it targeted towards pesticides that present the greatest public health risk.
Industry bill -- No schedule
New law -- Within one year of enactment the Administrator must publish a list of pesticides that present the greatest risk to public health. The law further requires a review of all food tolerances in three stages, starting with the pesticides that present the greatest risk to public health. One third of all tolerances must meet the standard in the Act within 3 years of enactment, two thirds by 6 years, and all tolerances must meet the standard in 10 years.
Estrogen/Endocrine Disrupter Testing Requirement
Old law -- Some testing will be required under current regulations.
Industry bill -- No testing requirement.
New law -- Requires the Administrator to establish a estrogen/endocrine disrupting screening program for all chemicals in or on food (not simply pesticides).