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.”
