Pesticide corporations and trade partners pressured EU to allow banned substances in imported crops
Below is an excerpt from an important report that is worth reading in full in order to appreciate the assault on public health that's being attempted by corporate lobbyists and those EU Commission officials who wish to accommodate their demands.
Toxic residues through the back door
Corporate Europe Observatory, 16 Feb 2020
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* Pesticide corporations and trade partners pressured EU to allow banned substances in imported crops
Pesticide corporations and trade partners have put immense pressure on the EU to allow residues of certain hazardous pesticides - banned in Europe - to be present in food and feed imports. Facing an endless number of visits, letters and reports, complaints and threats at the WTO by the US, Canada and others, the European Commission dropped its original plan to ban residues of these dangerous chemical substances in imports. It is now up to the new Commission - with its ambitious European Green Deal - to change this approach and stand up for public health.
EU pesticide rules include a ban on particularly hazardous substances in pesticides, for instance those that are carcinogens or endocrine disruptors. These substances are so dangerous that EU regulators believe that, unlike other chemicals, there is no safe level of exposure to them.
Documents obtained by Corporate Europe Observatory from the European Commission through Freedom of Information laws show how pesticide corporations and trade partners have put immense pressure on the Commission to weaken its approach to these pesticides when it comes to imported food and feed. Facing an endless number of visits, letters and reports, complaints and threats at the WTO by the US, Canada and others, the EU dropped its original plan to ban residues of these substances in imports in order to avoid consumers from being exposed.
Pesticide producers like Bayer-Monsanto, BASF, and Syngenta, as well as third countries like the US and Canada, have fought the EU pesticide rules tooth and nail; with some success. The alleged negative impacts of these regulations on international trade have been a key weapon used to fight against the EU’s plan to ban these products, laid out via the so-called hazard-based criteria. These criteria aim to ban particularly dangerous substances, such as carcinogens and endocrine disruptors, from pesticides that end up in the food chain.
With new US-EU talks in the picture, and ongoing debates about the CETA and MERCOSUR free trade agremeents, EU pesticide standards are once again in the firing line.
At the same time, the European Commission was also undertaking a so-called REFIT evaluation of two pesticide regulations that govern pesticide authorisations and residue levels in food. REFIT is part of the EU’s so-called Better Regulation agenda, which in fact generally seems to be focused on making EU regulations ‘better’ for industry.
The final pesticide REFIT report is to be launched at the end of March 2020, at the same time as the new Farm to Fork strategy. It is expected to finally bring clarity about the Commission’s intentions when it comes to toxic pesticide residues in imported goods. But while Health Commissioner Stella Kyriakides , who is responsible for policy in this area, has recently launched a ‘Beat Cancer Plan’ and is very concerned about the health impacts of pesticides. Trade Commissioner Phil Hogan has, on the contrary, suggested that pesticide standards can be part of a new attempt to reach a US-EU trade deal.
If it is confirmed that the new proposal will allow residues of hazardous pesticides in imports, this would breach the EU’s own health protection goals. It would also see European farmers confronted with unfair double standards, and ignore key demands made by the European Parliament last year. Indeed it would undermine the new Commission’s own stated ambitions for the Green New Deal and the Farm to Fork strategy, before they have even taken off. Those plans contain significant promises of reduced pesticide use and more sustainable imports.
Pesticides: The difference between EU and other regulatory systems
The EU has very different rules to regulate the sale and use of pesticides from those in the US or Brazil. The 2009 EU pesticide regulation established ‘hazard-based cut-off criteria’ for particularly dangerous substances such as carcinogens and endocrine disruptors. Pesticides identified as such have to be banned because it is scientifically established that some chemicals do not have a safe level of exposure. This is the case for instance with some carcinogenic, mutagenic and reprotoxic chemicals (CMR) as well as endocrine disruptors. The chemical industry lobby as well as trade partners like the US have always strongly opposed the hazard-based approach and favoured a risk-based approach, claiming that a safe level of exposure can always be established (“the dose makes the poison”). (See 2015 report A Toxic Affair by Stééhane Horel and CEO.)
Pesticides that do not meet the hazard-based cut-off criteria will be subjected to the usual EU risk assessment. It should be noted that a risk assessment can of course also lead to a ban, if risks are found to be too great. As a result of these differences, a 2015 report by the Center for International Environmental Law (CIEL) listed 82 pesticides that are banned in the EU but approved in the US. According an industry law firm, over a quarter of the pesticides used in the US are not approved in the EU, including the herbicide atrazine and beekillers clothianidin, thiamethoxam and - for most uses - imidacloprid. The same law firm recalled how Brazil’s President Jair Bolsonaro, within the first 100 days of his presidency, gave the green light for 152 pesticides, previously banned in Brazil. Work published by Professor Larissa Bombardi of the University of São Paulo highlights the fact that out of 504 active pesticide ingredients authorised in Brazil, 149 are prohibited in the EU.
Public concern about health and environmental impacts of pesticides, however, will put strong pressure on the new EU Commission to take action to reduce their use. Von der Leyen’s European Green Deal explicitly calls for “an increased level of ambition to reduce significantly the use and risk of chemical pesticides”.
REFIT: a threat to public interest health regulation?
In 2016 the European Commission launched a so-called REFIT evaluation on the Pesticide Regulation (1107/2009) and the Maximum Residue Legislation Regulation (396/2005). REFIT (Regulatory Fitness and Performance programme) is part of the EU’s Better Regulation Agenda, whose main purpose is to alleviate the regulatory burden for business.
Indeed, REFIT presented another opportunity for industry to attack the new hazard-based criteria, as it could potentially lead to the EU pesticide regulation being opened up for renegotiation. On several occasions when industry complained about the EU’s hazard-based approach for pesticides, the Commission pointed to the REFIT evaluation. Moreover, when Canada brought up the hazard-based approach in the context of the Comprehensive Economic and Trade Agreement (CETA), the Commission recommended that Canadian actors participate in the REFIT process.
The pesticide industry took up the Commission’s invite, and weighed in heavily on the REFIT evaluation. Pesticide Action Network (PAN) Europe has observed how the questions asked in the REFIT consultation were strongly biased towards finding out how burdensome the regulations are for industry interests, rather than their usefulness for health and the environment.
Pesticide corporations also lobbied the Commission directly on the REFIT evaluation. For instance, in February 2018, lobby consultancy firm European Public Policy Advisors (EPPA) wrote to Internal Market and Industry Commissioner Bienkowska’s cabinet that, “given our strong experience as advisors to Bayer”, they would like to advise DG GROW on how the legislation should be changed “to increase the competitiveness of European companies such as Bayer, the world market leader”.
Toxic residue levels in imported goods - a thorny trade issue
The pesticide industry’s fight against the hazard-based cut-off criteria is well known, but there is also an elephant in the room, as yet unacknowledged: Can food still be exported to the EU if it contains residues of pesticides that fall under these criteria, ie that are, for instance, carcinogenic or reprotoxic? If not, that would mean that these pesticides can no longer be used on crops destined for the EU market.
This was the topic of a two-day workshop on pesticide residues held in October 2016 by the European Crop Protection Association (ECPA), the pesticide industry’s lobby group, which was attended by officials from DG SANTE and the European Food Safety Authority (EFSA). In a follow up report, ECPA said that for some sectors “this issue is their biggest policy challenge at present, and is having a significant impact on predictability and on trade”.
The issue was raised again when, in February 2017, two agricultural attachés from the US Mission to the EU visited DG SANTE. In March that year, a Bayer lobbyist visited a cabinet member of Phil Hogan, then EU Agriculture Commissioner, sharing concerns about how the EU would deal with maximum residue levels on imported goods - the so-called import tolerances - for hazardous pesticides. Bayer told the EU official that they expected the Commission to operate “in compliance with WTO obligations to avoid trade distortions”.
Two days later, two Bayer lobbyists met with Nathalie Chaze, a cabinet member of the Health and Consumer Commissioner Vytenis Andriukaitis, and again asked about the EU approach. Ms Chaze replied that the objective of the EU rules was “to protect consumers against cut-off substances and their residues in food, again independently of their origin”. This answer clearly did not please the Bayer lobbyists, who replied that this would “not only affect their business in the EU but also in third countries exporting to the EU”. They also said that this would be challenged at the WTO.
The World Trade Organisation (WTO) allows members to challenge a policy measure or safety standard introduced by another country via a WTO dispute. For example, the US took a case against the EU for its ban on hormone-treated beef. Nevertheless countries are still permitted to set higher standards than those agreed in certain international settings, “if there is scientific justification”. In spite of this, the disciplining power of the threat of a trade dispute is significant, in particular for DG Trade.