Many growers are likely scratching their heads at this point, asking “Can I use chlorpyrifos on my crops … or not?!”
The confusion is quite understandable as there has been a literal seesaw of decisions on the complete ban vs. tolerances for the use of the pesticide. Even now, with the 8th Circuit Court’s ruling that revoked the EPA rule banning its use and reinstated previous tolerances, EPA “expects to expeditiously propose a new rule to revoke the tolerances for all but 11 uses with additional restrictions.”
For a basic history of the fluctuating rulings:
- Title 40 of the Code of Federal Regulations establishes tolerances are established for residues of the pesticide chlorpyrifos in or on the 80 food commodities with prescribed conditions. (§180.342)
- On August 30, 2021, the EPA published a final rule revoking all tolerances for chlorpyrifos which effectively stopped the use of the pesticide on all food and animal feed.
- In 2023, the U.S. Court of Appeals/8th Circuit ruled to vacate the EPA final rule revoking chlorpyrifos tolerances, based on the court’s conclusion that because EPA was pressed for time (as it was given a 60-day deadline), the agency concluded it had only one real option: to revoke all tolerances and ban chlorpyrifos. The court determined that EPA should have considered modifying the tolerances, noting that the Agency had previously identified 11 specific food and feed crop uses that were not likely to cause harm and had high-benefit agricultural uses.
- With the court’s ruling, the mandate to finalize the court’s judgment was issued on December 28, 2023, reinstating all tolerances for chlorpyrifos residues.
- On February 5, 2024, the EPA officially reinstated all tolerances for chlorpyrifos. On the same day, the FDA withdrew its 2022 guidance document on chlorpyrifos residues, that was intended to explain the FDA’s enforcement policy for foods containing chlorpyrifos residues.
Since the reinstated CFR tolerances are currently in effect, growers can use currently registered chlorpyrifos products, according to their product labels, on all crops that have reinstated tolerances. However, such uses may be subject to restrictions by individual states. Additionally, in a further February 2, 2024, update EPA stated that it was planning to “expeditiously propose a new rule” to revoke the tolerances for all but the 11 uses previously identified (alfalfa, apple, asparagus, tart cherry, citrus, cotton, peach, soybean, strawberry, sugar beet, spring wheat, and winter wheat). Those uses, which would also have restrictions for geographic location, rate of application, and vulnerable species and their habitats, represent about 55% of the total chlorpyrifos usage on agricultural commodities between 2014-2018.
Throughout the fluctuating rulings, there has been much public debate over use of the pesticide. Public outcry against the use of chlorpyrifos had resounded for years, due to findings that high residue levels could have significant health impacts. So many consumer groups lauded EPA’s 2021 ban of the pesticide’s use. On the other side, chlorpyrifos was one of the most widely used insecticides, with growers appreciating its efficacy against harmful insects like caterpillars, beetles, and moths without damaging crops. Because of this, more than two dozen agricultural groups reached out to the court to “weigh in” on EPA’s ban.
Given the vacillating environment, we would recommend that any growers using chlorpyrifos closely follow the continuing saga of regulation to ensure you are in compliance with the most current ruling. And, if you are not a grower of one of the 11 crops named by EPA or would fall under any of the restrictions, we’d advise that you begin now to find an alternative. For processors and other downstream food businesses, be communicating with your supply chain to ensure they are in compliance and protect against out-of-tolerance residues in your products.
While EPA will certainly “at least recognize the full scope of what it can do before announcing what it will not do,” as the court ruling dictates, it is unlikely that any new rule from EPA would have allowable uses for more than the 11 crops which EPA had previously found likely to be safe if other uses were revoked.
This flip flop obviously makes life very difficult for farmers trying to determine whether they can legally use chlorpyrifos and under which conditions. As noted above, this debate is not over, so farmers are left not knowing where this will all land and when!
Of further note, there is now a new ban in place for the herbicide dicamba – another chemical that has raised concern. It is not clear at this point where this issue will go, but again the EPA is becoming involved, as are manufacturers, farmers, consumer organizations, and the legal system.
As we have noted recently there is increasing push back on the use of chemicals of all types in foods, and when the federal government does not do the bidding of those pushing to remove chemicals, we will likely see action at the state level, as has happened recently in California and Illinois.
The focus on chemical residues thus continues and is not likely to slow down anytime soon, so it would be wise for food companies to take a look at their risk profiles around some of these new chemical risks.
