Court stings EPA approval of Dow pesticide, citing need for more bee research

By Sara Wyant

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SAN FRANCISCO, Sept. 10, 2015 - The U.S. 9th Circuit of Appeals vacated the EPA's approval of the pesticide sulfoxaflor, concluding that the agency violated federal law when it approved the registration without additional studies regarding potential impact on honeybees.

The case, Pollinator Stewardship Council vs. EPA, stems from the regulatory agency's unconditional registration in 2013 of two products invented by Dow AgroSciences LLC with the active ingredient sulfoxaflor - a new insecticide that targets a range of pests.

“Sulfoxaflor has unique attributes compared with other sap-feeding insecticides providing a significant new tool for growers for many years to come,” noted Dow AgroSciences in a press release after the initial registration.

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EPA initially proposed to conditionally register sulfoxaflor and requested additional studies to address data gaps regarding the pesticide's effects on bees.

“A few months later, however, the EPA unconditionally registered the insecticides with certain mitigation measures and a lowering of the maximum application rate. It did so without obtaining any further studies,” according to Judge Mary Schroeder, who wrote the court's opinion.

The three-judge panel concluded that the “unconditional approval was not supported by substantial evidence.”

The approval is remanded back to EPA to obtain further studies of the effects of sulfoxaflor on bees.

In the meantime, U.S. growers will be unable to use sulfoxaflor, marketed in the U.S. as Transform and Closer, on crops such as citrus, cotton, canola, strawberries, soybeans and wheat.

Petitioners who sued EPA include the Pollinator Stewardship Council, the American Honey Producers Association, the National Honey Bee Advisory Board, the American Beekeeping Federation, and beekeepers Thomas Smith, Bret Adee and Jeffery Anderson.

Greg Loarie, the Earthjustice attorney who argued the case on behalf of the petitioners, praised the decision.

“Our country is facing widespread bee colony collapse, and scientists are pointing to pesticides like sulfoxaflar as the cause. The court's decision to overturn approval of this bee-killing pesticide is incredible news for bees, beekeepers and all of us who enjoy the healthy fruits, nuts, and vegetables that rely on bees for pollination,” he said in a release.

Dow AgroSciences, which developed and commercialized sulfoxaflor, intervened in the case on behalf of EPA.

The company said it “respectfully disagrees with the Ninth Circuit's conclusion that EPA's registration of products containing sulfoxaflor should be vacated. 

“Dow AgroSciences will work with EPA to implement the order and to promptly complete additional regulatory work to support the registration of the products,” the Indianapolis-based company said in a statement. “Dow AgroSciences is also considering its available options to challenge the court's decision.”

An EPA spokesperson also said the agency will review the court's decision.

The California Department of Pesticide Registration (DPR) notes that it has refused to allow sulfoxaflor to be used in California, despite EPA's approval for all states.

After DPR began reviewing data, submitted by Dow, beginning in 2010, we refused to allow it to be used in California, explains Charlotte Fadipe, Assistant Director of Communications, for the California Dept. of Pesticide Regulation

“Just like the judge we felt that we needed additional studies. In particular we were concerned that the studies did not show that the rate of use, allowed by the label, would not harm bees. As a result the pesticide generally could not be used in the golden state.

There was one exception. In 2015, the lettuce industry asked DPR if it could use sulfoxaflor because it was facing enormous pest pressures from aphids. The department agreed to allow the lettuce industry to use it only at a lower rate, says Fadipe, since Dow provided studies to show that the lower rate would not harm bees. “Furthermore that produce doesn't bloom and attract bees,” she told Agri-Pulse.  

To read the court decision, click here.

This article was updated at 8:10 pm to reflect CA DPR comments. 
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