Environmental groups seeking regulation of pesticide-coated seeds have gone to court again on the matter, seeking an order requiring EPA to directly address the issue.

The Center for Food Safety and Pesticide Action Network of North America filed a petition in 2017 that “called on EPA to close a regulatory loophole that allows seeds coated with systemic pesticides … to evade the registration and labeling requirements of the Federal Insecticide, Fungicide, and Rodenticide Act,” their complaint, filed in federal court in San Francisco, says.

EPA, however, has not responded to the petition. The agency exempts coated seeds from FIFRA’s premarket licensing, registration, assessment, and labeling regime, the groups’ complaint says, by using what is known as the “treated article” exemption.

CFS and PAN, however, say in the suit that "because the coated seeds are not treated primarily to protect the seed itself, but rather to protect the growing plant, they cannot be properly exempted as 'treated articles' under the regulation."

The coatings, which are overwhelmingly neonicotinoid insecticides, harm bees and other pollinators, CFS and PAN say in the lawsuit. Neonic manufacturers have disputed the extent of damage to pollinators and other wildlife and say they have adopted numerous mitigation measures to address the concerns.

CFS filed a lawsuit in 2016 challenging the lack of regulation of treated seeds, but the judge in that case ruled the EPA’s 2013 guidance on the question did not constitute “final agency action” and was thus unreviewable in court.

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"Crops grown from coated seeds — including corn, soybean, and sunflower — cover almost 180 million acres of U.S. farmland each year," the lawsuit says. "This is the equivalent acreage of over one- and one-half Californias."

The American Seed Trade Association responded, saying, "There is no basis whatsoever for any claim that pesticides applied as seed treatments are 'not regulated' by EPA under FIFRA and/or are subject to a 'regulatory loophole.' All pesticides approved for use as seed treatments are subject to rigorous, scientifically robust review by EPA."

ASTA said it stands by comments submitted to EPA on the issue by ASTA, CropLife America and other groups in 2018.

"Efforts to require separate and/or additional registrations for seeds treated with crop protection products would unnecessarily duplicate EPA’s existing exercise of authority under FIFRA, and place tremendous burdens on growers, while having no impact on human health or environmental safety," ASTA said. 

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This story has been updated with comment from ASTA.