Following Ninth Circuit Decision, EPA Orders Ban On Sulfoxaflor Sales

Written by Katharine Richter

On September 10, 2015, the United States Court of Appeals for the Ninth Circuit decided in favor of various “commercial bee keepers and bee keeping organizations” who challenged the Environmental Protection Agency (EPA) approval of “insecticides containing sulfoxaflor, which initial studies showed were highly toxic to honey bees.”  As a result of the decision, the EPA issued a cancellation order on November 12, 2015, for “all previously registered Sulfoxaflor products.”  As part of the order, “all distribution or sale by the registrant of cancelled sulfoxaflor products is prohibited, unless such distribution or sale is for the purpose of disposal or export.”

In the opinion, the Ninth Circuit Court begins by discussing the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which “prohibits the use or sale of pesticides that lack approval and registration by the Environmental Protection Agency (EPA),” 7 U.S.C. § 136a(a).  FIFRA uses a cost-benefit analysis to determine whether a pesticide will cause unreasonable risk to people or the environment.  After a new pesticide has been submitted to the EPA for approval, the EPA can either conditionally or unconditionally accept.  Unconditional acceptance would require sufficient data to show there are no unreasonable risks associated with the pesticide.  Conditional acceptance would require more data submitted after a period of use of the pesticide. 

In this case, Dow Agrosciences LLC (DOW) applied for approval of three pesticides, all containing sulfoxaflor as the main ingredient.  In January 2013, the EPA announced it would conditionally register the sulfoxaflor, but “less than seven months later, on May 6, the EPA decided to “unconditionally” register sulfoxaflor.”  This occurred even though DOW “never completed the requested additional studies” and “the EPA acknowledged the insufficiency of the data to support unconditioned registration.” 

The Ninth Circuit Court vacated the EPA’s “unconditional registration of sulfoxaflor, and remanded for the EPA to obtain further studies and data regarding the effects of sulfoxaflor on bees, as required by EPA regulations.”