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EPA Seeks Comments on New Approaches to Disclosure of Pesticide Inert Ingredients

Beveridge & Diamond, P.C., December 23, 2009

On December 23, 2009, the U.S. Environmental Protection Agency (“EPA”) made available for comment two alternative approaches to increase public availability of the identities of inert ingredients contained in pesticide products under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”).  (Click here to view the Federal Register notice describing EPA’s advance notice of proposed rulemaking.)  The public comment period is open until February 22, 2010. 

EPA anticipates that its action will both assist consumers and users of pesticides in making informed decisions and reduce the presence of potentially hazardous ingredients in pesticides.  At the same time, the Agency recognizes that mandatory inert ingredient disclosure could have “potential negative effects on innovation in the pesticide market,” expressing a specific need to more closely examine the circumstances under which confidentiality of inert ingredients may be necessary to preserve manufacturers’ research and development investments. 

EPA’s notice follows two petitions filed in 2006 by a group of states and several environmental interest groups seeking the disclosure on pesticide labels of 350 inert ingredients claimed by petitioners to be “hazardous.”  EPA partially granted the petitions on September 30, 2009, by committing to initiate a rulemaking to broaden the public availability of inert ingredient identities.  (Please click here for EPA’s September 30, 2009 response to the 2006 petitions; a summary of the Agency’s response is also available here.)

EPA’s new notice marks the initiation of the rulemaking process and outlines two alternative approaches for consideration and comment:

• Under the first option, EPA would require that pesticide labels identify “potentially hazardous inert ingredients.”  EPA is seeking comment on several specific questions raised by this approach, including how such a list of potentially hazardous ingredients should be identified, whether EPA should establish a “de minimis” concentration below which disclosure of a potentially hazardous inert ingredient would not be required, and whether the disclosure requirement should extend to potentially hazardous impurities.

• As a second option, EPA has proposed requiring that “all or most” inert ingredients be listed on pesticide labels.  Acknowledging concerns about inert ingredient confidentiality, EPA is soliciting comment from pesticide registrants regarding the potential competitive impacts of a broader inert ingredient disclosure requirement. 

EPA also raises a number of issues common to both approaches, including anticipated consumer responses, possible impacts on the development of new pesticide products, and whether any disclosure requirement should include the concentrations of inert ingredients.  The Agency is also soliciting “ideas for alternative approaches, both regulatory and non-regulatory” in addition to the options described by its notice. 

If you have any questions about EPA’s notice or the regulation of inert ingredients under FIFRA, or if you would like more information concerning the Agency’s rulemaking process and opportunities for public comment, please contact: Kathryn Szmuszkovicz at (202) 789-6037, kes@bdlaw.com; Alan Sachs at (410) 230-1345, asachs@bdlaw.com; or David Barker at (202) 789-6050, dbarker@bdlaw.com.