Pesticide Regulations Part-6 - Pesticide Prohibition Order & Managing Obsolete Pesticides

Pesticide Regulations Part-6

Pesticide Prohibition Order & Managing Obsolete Pesticides: 

Options before Policymakers

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness 

& Consumer Products Industries

& 

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

Government has issued draft prohibitory order for 27 pesticides. After representations from various stakeholders and case-to-case evaluation, the government may decide to declare which molecules to be declared as obsolete or may decide to phase out.

Phasing out is an essential part of the development and happens in every sector and in every country. Human life itself is a classic example of phasing out process. We all have to phase out someday and this will create space for a new and younger generation. With the development of new chemistry and better products, almost every developing country and economy in transition has stocks of obsolete pesticides. These pesticides may not have used in their current location or have become unusable for various reasons including regulatory changes.

Challenges due to Obsolete Pesticides:

By its chemical nature, even in normal practice, all pesticides are hazardous to some degree. If they are misused or overused can cause harm to human health and the environment. Obsolete pesticide stockpiles present additional hazards because they may include outdated chemicals that have been banned by regulatory actions because of their adverse toxic impact on health and environment or due to better and safe alternates or the pesticides may have deteriorated due to some reasons causing a particular danger to human beings and the environment.

Various factors may be responsible for the accumulation of obsolete pesticide stockpiles in many states or in many countries. These situation needs to be urgently addressed before these obsolete toxic products become a problem for society. Delays will aggravate current problems by incurring further deterioration of stocks, causing more harm to public health and the environment.

Dealing with Obsolete Pesticides:

Prevention of obsolete pesticide stockpiles is essential. It depends on the sensible collaborative efforts of governments, pesticide manufacturers and distributors, international organizations, non-governmental organizations (NGOs), donors and end-users themselves. No single entity can solve the problem on its own.

Appropriately dealing with Obsolete:

Pesticides is costly, technically complex and specialized assistance may be needed. Obtaining such assistance can be a complex and lengthy process.  As a country, we have experienced the challenges in clean-up operations during the Bhopal gas leak case.

In some situations, while the policymakers of the country may be seeking and awaiting this technical assistance, much can be done to prepare for the eventual cleanup operation by taking correct decisions in advance while passing the pesticide prohibitory orders.

How to manage obsolete pesticides?

Any prohibitory order must also gauge the size of the problem. It should be part of the preparatory work should. It also considers various factors to stabilize the situation so that any further environmental contamination and health hazards from prohibitory pesticides are avoided.

A country that takes appropriate action before approaching external help demonstrates a commitment to solve the problem of obsolete pesticides and preventing their recurrence.

Capability Building to Manage Obsolete Pesticides:

Besides, taking appropriate action early will reduce the costs of cleanup operations and help to build capacity in the country for the management of pesticides and hazardous waste.

Various measures should to be considered before requesting external financial and technical assistance in disposing of obsolete pesticide stocks.

Protection of Human Health:

Removing obsolete pesticide stocks will protect human health. Pesticides in their normal state are harmful to human beings in various degrees. People exposed to pesticides may suffer short-term acute health effects such as nausea, headaches, sore eyes, skin rashes and dizziness.

In some cases, exposure to pesticides may cause cancer, reduced fertility, nerve or organ damage, unconsciousness and even death. Obsolete pesticides often include outdated chemicals, which are highly toxic.

Many of these chemicals are banned in many countries because of their toxicity, yet are still found in large quantities in numerous countries. Obsolete pesticides with time also deteriorate and may sometimes generate decomposition products that are even more toxic that the pesticide itself.

Handling and storage of obsolete pesticides:

Handling and storage of obsolete pesticides have no commercial value hence often lead to careless handing and weak storage controls.

Stockpiles of obsolete pesticides differ from the normal application of pesticides in agriculture or health care, mainly because large quantities of these hazardous chemicals are located in one place. Any leakages or damage caused to the stockpile could result in serious acute local contamination.

Many obsolete pesticides are also kept in unguarded stores or out in the open where children, adults and animals can easily and frequently come into contact with highly toxic chemicals.

Stockpiles of obsolete pesticides often include leaking containers that allow the pesticides to be dispersed in the environment with the result that people living and working nearby may be exposed to these pesticides and suffer consequent health problems.

The leaked pesticides may also get into drinking-water supplies from rivers, lakes or underground aquifers. People drinking this contaminated water will suffer adverse health effects.

Similarly, food-derived from crops or livestock that have been contaminated by pesticides may be toxic for consumers.

Pesticides in the environment can have adverse effects on wildlife through direct exposure to chemicals, or through indirect exposure in feed or water. Animals may become sick or die, and there may be deleterious effects on the natural environment.

The economic impact should be evaluated:

Obsolete pesticide stockpiles are an economic burden as well as a danger to health and the environment. The money spent on buying the original pesticides – which then become obsolete – is effectively wasted, and the opportunity of buying other potentially useful goods with that money is lost.

Furthermore, the storage of obsolete pesticides incurs a cost in terms of space that cannot be used for other more productive purposes. Where the pesticides are guarded or the effort is put into maintaining the stocks, for example by transferring pesticides from leaking drums to new containers, more costs are incurred.

Replacing obsolete pesticides with new products to control pests (both chemical and non-chemical) again uses funds that could have been used for other purposes had these obsolete pesticides have still been available for use.

What authorities should do before issuing prohibitory order?

Suggestion 1: Prohibitory orders must be based on merit & logic of science and transparency to prevent unnecessary litigations.

Suggestion 2: In most developed countries and in most democracies of the world, all documents, which are related to public health and environment protection, are in the public domain. This also allows experts working with civil society and citizens to give their views on these sensitive matters. This is vital to win public trust in public policy.

Suggestion 3: Each pesticide or molecule should be evaluated based on its own merit and should not be clubbed with other molecules while doing a safety assessment. This will ensure merit-based decision-making process.

Suggestion 4: Before issuing final prohibitory order, the time required for phasing out of the existing stocks should be properly calculated. The timeline should be based on the production data available with the regulators and the policymakers. If required, the physical audit of the licensed facilities can be undertaken. This will avoid stocks of prohibited pesticides in the system.

Suggestion 5: Phasing out timeline should be based on Shelf-life of the pesticides, available current stock of the raw materials for making pesticides. This should ensure that no banned product should be manufactured once existing raw material is exhausted. This can be linked to the shelf-life of the products. Based on the times, the permission to manufacture should be revoked and after the shelf-life is over, permission to sell should be revoked. This will address the problem of the obsolete pesticide in society.

The government must plan for safer and better products under Atmnirbahr Bharat. 

Transition to newer and better chemistry is the need of the society under 'Atmnirbhar Bharat'. Like any other citizen of the developed world, Indian farmers and consumers deserve better and safer options. Use of obsolete chemicals is also also hurting Indian agriculture exports.

New Pesticide Management Bill'2020 is an opportunity, let it address this issue to avoid any controversy in future.

For updates, follow this blog and visit again, more analysis in upcoming articles. 

Follow us on Twitter and Linkedin for regular updates.

If any clarification is required you may contact the authors.

Do send your queries to us at email address: 

Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.

Pesticide Regulation Part-5 Ban or Not to ban Pesticides: How to address this issue?

Pesticide Regulations Part-5

(To read earlier parts, please search on this blog with 'pesticide')

Ban or Not to ban Pesticides: How to address this issue?

Why and How to review existing Pesticides?

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness 

& Consumer Products Industries

& 

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

For any responsible government food safety and food security are non-negotiable in governance agenda. NGOs and Newspapers frequently cover the issues related to pesticides and their negative impact on food safety and the environment. These articles do impact public opinion which builds pressure on policymakers and judiciary.

The recent prohibitory order on 27 pesticides created a serious debate in society. Let us address the same in a holistic manner. In this article, we will cover, what should be the role of legislation in such a situation. In the future article, we will discuss how to address public opinion against pesticide. Please feel free to contact in case, more inputs are required on how to address these issues.

Regulate or Ban the Pesticide:

Governments regulate pesticides for many reasons. The main objective of controlling any hazardous product or activity is to protect human health and the environment from risks associated with the product or activity:

This includes the protection of:

• Product application-related people
• The Consumers
• The public
• The crops
• The livestock
• The wildlife
• The water bodies
• Other natural resources

When it comes to pesticide, regulation should also consider:

• The effectiveness of pesticide products for their proposed use
• Ensuring a fair market for manufacturers, importers and distributors of pesticide products.

Purpose of Pesticide Management Legislation:

Legislation is one of the tools that governments use to achieve the above stated objectives, by regulating the:

• Manufacture,
• Importation,
• Transport,
• Storage,
• Sale,
• Use
• Disposal of pesticides
• Disposal of empty pesticides containers

Why Effective Management of Pesticide is important?

Pesticides can have a broad bearing on many aspects of human, animal and plant life. It is important that all regulations dealing with the following issues must work in close coordination:

• Specific pesticide legislation,
• Legislation on human and occupational health
• Legislation on Environmental protection,
• Legislation on Agricultural practices
• Legislation on International trade

All these issues will tend to affect pesticides in overall regulatory framework’

What should be considered while regulation pesticides?

All countries and societies are at a different stage of development. It will be useful to factor in the ground realities before finalizing the legislation.

The good practices emphasize that governments when regulating pesticides, should take full account of the following factors such as:

• Local Needs
• Social and Economic Conditions
• Levels of Literacy among users
• Climatic Conditions
• The Availability & Affordability of Appropriate Application Equipment
• Personal Protective Equipment
• Monitoring of pesticide use in the local context

Any review of pesticide legislation should thus start with a review of this broader regulatory framework.

Government has the right to review the existing pesticides:

With time and with the overall advancement in the sector existing national pesticide legislation may have become outdated with respect:

• Objectives, priorities and needs may change
• Institutional responsibilities may change,
• Changes in the regulatory and institutional framework
• Information about hazards and risks may change 
• Due to new needs and issues arising in the country
• Applicable international or regional standards.
• Regional collaboration and harmonization may be introduced or new trade requirements may become important, for instance, when non-compliance would affect export of agricultural produce.
• Countries may wish to harmonize their pesticide legislation with non-binding international guidelines for ease of doing business or to promote exports

Why inconsistency occurs in pesticide laws?

Inconsistencies within the regulatory framework for the control of pesticides often result in controversies. Various stakeholders develop their own understanding of the provided terminology. The major reason for inconsistencies in the legislation and their understanding are due to:

• Varying definitions of pesticides and related terms,
• Overlapping mandates for different agencies with pesticide management responsibilities and
• Conflicting provisions regarding allowed pesticide use.
• Different laws or regulations may use the same terminology in a different context
• Different laws or regulations developed without the necessary coordination or on an ad-hoc basis to deal with specific problems in specific contexts.

Why conflicts are increasing in Pesticide Management domain?

There are many reasons leading to increasing conflicts:

• Clash of commercial interest between various stakeholders
• The power struggle between various departments due to contradictory provisions in different pieces of legislation that may grant the same or overlapping powers to different ministries, departments or agencies.
• Duplicative administration of some tasks or gaps in coverage.
• For Example: Any pesticide falls in the domain of agriculture, health, chemicals, trade, manufacturing, pollution, environment, labour, etc. It may be unclear to the user or even governments themselves which system is responsible for the regulation which aspect of the pesticide.

What is the way forward?

In modern world reforms, it is expected governments to optimize the integration of responsibilities of various ministries and departments regarding regulatory control of pesticides.

In the ease of doing business era preferably through one pesticide law that applies to all pesticides may be a better option, which can be framed in consultation with all relevant stakeholders.

Besides redesigning the pesticide legislation, there also may be a need to strengthen some provisions of other pieces of legislation by making them specifically applicable to pesticides.

Reviewing and revising pesticide legislation should also advance an overall objective to develop unified legislation covering all aspects of pesticides.

What modern pesticide management regulation should cover while updating pesticide legislation?

• The main reasons for updating pesticide legislation should be based on the need of the society in the country.
• Law should ensure consistency in the overall regulatory framework with effective connections between pesticide legislation and other relevant legislation with minimal contradiction or overlap.
• Law should clarify any issues related to responsibilities, authority or mandate of the institutions involved.
• In the fast-changing world, the law should incorporate provisions to address new requirements stemming from recent developments or updated priorities.
• Governments must consider and facilitate multidisciplinary approaches to pesticide management;
• Today, as part of many global treaties, it is our moral obligation to comply with requirements of international agreements and recommendations.
• In the end, the purpose of any legislation is the welfare of the people and law should facilitate the harmonization of the requirements with trading partners and the countries within the region.
• Ease of doing business will also promote investment and will create an overall welfare of society.

New Pesticide Management Bill'2020 is an opportunity, let it address this issue to avoid any controversy in future.

For updates, follow this blog and visit again, more analysis in upcoming articles. Follow on Twitter and Linkedin for regular updates.

If any clarification is required you may contact the authors.

Do send your queries to us at email address: 

Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.

Pesticide Regulations Part-4 : Illegal Pesticides & Provisions of Pesticide Management Bill’ 2020

Pesticide Regulations Part-4

(To read earlier parts, please search on this blog with 'pesticide')

Why Pesticide Management Bill’ 2020 not addressing issues of Illegal pesticides?

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness 

& Consumer Products Industries

& 

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

Once again we are re-emphasizing that food security and food safety are essential for any healthy and progressive society. Illegal pesticides are a serious threat to both. 

Sources of Illegal pesticide:

Several factors have contributed to an increase in trade in pesticide products. The global growth in demand for agricultural production – due to rising world population and increasing per capita wealth – has led to an increase in demand for pesticides. As a result, cross-border trade in legal pesticides has been dramatically increasing, especially in the last decade. These growing trade flows have put strong pressure on border authorities who often lack the resources to ensure proper oversight, leading to a corresponding rise in illegal pesticide trade. While not all illegal pesticides are the result of trade, many are also the result of “homegrown” providers with the support of corrupt practices of enforcement officials within authorities. PMB'2020 must address this issue effectively.

Why Illegal pesticides business flourish?

Illegal pesticides are attractive to farmers because they are less expensive than legitimate products. Their price can be as low as 60% of the price of legitimate, branded pesticides. 

Another key driver of trade in illegal pesticides is the high-profit margins associated with this criminal activity. The margins on non-genuine, illegal pesticides can be as much as 25-30%, compared to 3-5% for legitimate products. Several factors contribute to these high-profit margins. 

First, through the production of illegal pesticides, criminal actors avoid all the costs associated with the development and marketing of a new brand name product like R&D costs, sales and marketing, compliance cost, infrastructure costs, manpower cost, etc.

Furthermore, illegal producers do not face the high regulation costs associated with pesticide authorization. Pesticide registration is a long and costly process that can act as a barrier to entry for new businesses, making illegal activities attractive for criminal actors.

Besides, illegal producers might incur considerably lower production costs due to the poor composition of their products. Illegal pesticides are usually less concentrated than legitimate products, contain cheaper or smaller quantities of active ingredients, and can be made of diluted and obsolete pesticide stocks or even water or talc.

Demand for illegal pesticides can also be explained by end-users’ lack of awareness of the risks associated with their use and on how to identify them. It can be extremely difficult for farmers to differentiate between authentic and illegal pesticides as counterfeiters use elaborate techniques to make their products appear genuine.

Demand also exists for unauthorized pesticides, including broad-spectrum pesticides that are being banned in many markets across the world. This happens due to fictitious documentation in trade and lack of systems to trace fake documents.

No mandatory traceability in the law to prevent illegal trade:

Besides, the shape of pesticide supply-chains is changing and global supply chains are becoming increasingly complex, involving up to a large number of middlemen and different entities – ranging from manufacturers to shippers and distributors – with production, shipment, assembly and distribution points scattered over multiple geographical locations. The number of parties, transfers and stops involved in pesticide trade has complicated regulatory and control efforts, as well as the identification of illegal products. There is no system in the laws and regulations to ensure the traceability of the consignments.

The poor capability of enforcement departments, both poor skill and outdated inspection methods, adding to the problem:

The way trading volume increased, the Inspection and tracking systems have not kept up with this growing complexity of trade and its volume. As a result, a large share of illegal pesticides has been moving through legitimate supply chains without detection or seizure. This low risk of detection – together with the badly designed legal or financial consequences associated with the seizure of illegal pesticides in most jurisdictions – have encouraged the wrongdoers and increased opportunities and incentives for fraud, enabling this criminal activity to expand globally. Unfortunately, due to no formal arrangement meets between importing and exporting countries, exporting country has no incentive or reason to stop the trade of illegal pesticide in buying countries. 

Methods used in smuggling illegal pesticides:

There are many actors engaged in trade in illegal pesticides range from loosely organised groups – sometimes just a few individuals – to highly organised criminal networks. 

There is growing evidence that sophisticated counterfeits are produced and distributed by large organised criminal groups (OCGs), who conduct the majority of illegal trans-border shipments.

1. Misrepresentation of product content is one of the main methods and most common method used by illegal actors to avoid risk-profiling measures at custom borders, as well as regulatory and customer scrutiny. 

2. Relabeling and repackaging of pesticides by illegal actors or refill in illegal products in legitimate pesticide containers to make their products appear genuine. 

3. Forged transport documents are also used to conceal the content of containers and packages. 

4. As importing unbranded and unlabelled items is not illegal, criminal actors might further avoid border detection by sending products and labels separately – possibly through different ports – and printing counterfeit trademark labels on their products just before the sale. 

5. Use of weak border points and free trade agreements to avoid traceability: Criminal networks also import active ingredients to be formulated, packed and labelled near or within the country of destination, which prevents detection at the border and complicates the traceability of finished products.

6. Use of multiple channels and port shopping from free trade zone areas to minimize paper trails: Criminal groups also rely on various sophisticated techniques to disguise the origin and provenance of illegal pesticides and hinder product traceability along the supply chain. This includes the use of deliberately complex and long transit routes, crossing borders of multiple countries and relying on several transportation modes (e.g. sea, air, overland transport). 

7. Conceal the Point of Origin by manipulated documents in various free trade zones: Forged transport documents are also used to conceal the point of origin. Moreover, criminal actors can avoid detection by using distribution warehouses and self-storage facilities in transit countries for the assembly and distribution of illegal pesticides. They can also fail to declare a product for customs control at checkpoints or reroute a shipment.

8. E-Commerce promoting illegal pesticides: Now it is much easy. Illegal actors also directly sell their products to farmers via the Internet, which has become a major enabler for the distribution and sale of counterfeit and illegal pesticides. For instance, illegal pesticides imported in the US because of online sales on Amazon are estimated to be quite large in number, with about 1000 violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) every year. What is the trend and numbers in India, this should be investigated? 

Moreover, online sales of pesticides usually involve small parcels that do not always follow the same pathway as large shipments and often cross borders via postal or express services, reducing the effectiveness of traditional detection and seizure strategies established by the authorities.

Pesticide management Bill'2020 must understand the complexity and transnational character of trade in illegal pesticides. If the bill is not addressing these issues, it will be a missed opportunity and relevant of the pesticide bill will not achieve its desired objective, 

People involved in illegal pesticides are using advance technologies to avoid detection and also increasingly using sophisticated fraud system and making it difficult for traditional system of reporting, documentation, record keeping, inspection, traceability and risk management systems ineffective and in fact useless. They are struggling to control and corruption within the system makes it further vulnerable. 

Consequently, government agencies have to reconsider their fraud detection and enforcement tools and develop a range of policy responses to these new challenges. The use of modern technologies like blockchain and other options, if implemented can be of benefit.

Pesticide management Bill'2020 must be redrafted to include these dimensions to remain relevant for the coming years. In the present format, it is of little significance and may not address the issue faced by farmers, manufacturers and consumers. Policymakers will continue to struggle these challenges with little success.

New Pesticide Management Bill'2020 is an opportunity, let it not go waste in a hurry.

For updates, follow this blog and visit again, more analysis in upcoming articles. Follow on Twitter and Linkedin for regular updates.

If any clarification is required you may contact the authors.

Do send your queries to us at email address: 

Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.

Pesticide Regulations Part-3 : PMB'2020 and the Governance of Pesticide Sector

Pesticide Management Part-3

Pesticide Management Bill (PMB) 2020 and Governance of Pesticide Sector

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness 

& Consumer Products Industries

& 

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

Food must be safe and affordable. Efficient agriculture inputs management is vital to ensure food security and safe food for citizens and for trade.

Pesticide legislation must address the aspiration of society:

Laws always address the aspiration of society and create a path for a better future for all stakeholders. Therefore, the main reasons for updating the pesticide legislation should be to:

1. Pesticide Management Law must ensure consistency in the overall regulatory framework with effective connections between pesticide legislation and other relevant legislation with minimal contradiction or overlap. This is vital to ensure the accountability of the stakeholders.

2. Pesticide Management Law should also clarify all issues related to responsibilities, authority or the mandate of the institutions involved in the various dimension of pesticide management in the country;

3. Pesticide Management Law should also incorporate suitable provisions to address the new requirements based on ground reality and advances in science and technology or updated priorities of the countries related to food security, food safety and other trade and non-trade issues;

4. Pesticide Management Law is a highly specialized and complex subject due to diversified agro-climatic conditions and variety of crops. Pesticide laws should facilitate multidisciplinary approaches to pesticide management for effective monitoring and control.

5. Most agriculture products are traded and must meet the domestic laws and policies where products are sold. In order to avoid trade barriers,  Pesticide Management Law should comply with requirements of international conventions, treaties, international agreements and recommendations based on good practices;

6. In order to facilitate global trade, the pesticide laws Pesticide Management Law should meet the international norms to harmonize the requirements with countries within the region and key trading partners.

The above-mentioned points highlight the principle requirements of the Pesticide related laws in any country.

Homework required for revising pesticide laws:

There are many stakeholders in any society. All want to have a say in pesticide management in the country. Many stakeholders have filed various public interest litigations to make changes in the pesticide management system in the country.

Caution: There are many players in the system, those who want a bigger market share for their products and may like to use the regulatory arbitrage to gain market share. Fair and unfair means cannot be ruled on in this battle of market share. This makes pesticide management task more complex and difficult.

The only way to address these issues without fear and favour is by doing good homework before the modified draft is formulated.

We suggest that before a drafting pesticide legislation, due consideration should be given to the following:

1) Review and analyze all existing relevant national legal and institutional frameworks directly or indirectly relevant for pesticide management existing laws and objections raised on various legal and institutional provisions and clauses by various stakeholders.  

2) Review the provisions of the existing laws and regulations based on the experience of farmers and scientists on technical needs and regulatory failures.  This can be done based on identified and duly documented field realities and experiences.

3) The existing pesticide legislation should be reviewed based on international recommendations, which should be based on good practices

4) While reviewing the new pesticide policy objectives there must be due considerations for the cost-benefit analysis, socio-economic conditions, impact on environment and workers health and other strategic issues like over-dependency on imports etc. should be considered.

5) Pesticide legislation is highly techno-legal subject. Sensible drafting needs a wider understanding of the subject and implication of various provisions of the proposed law. This should involve a team composed of techno-legal experts and in absence of them a team of legal and technical experts from the field of pesticides and related subjects;

6) After drafting the proposed bill, the provisions of the same should be discussed with the involvement of key stakeholders. This will give the insight to the policymakers that how the stakeholders will react on the final draft. Meanwhile, the policymakers can prepare the justifications to address the media and people representatives, if required.

What next:

Now, the bigger question is, whether the proposed ‘Pesticide Management Bill ’2020’ is addressing these requirements or not? Please do share your views on the same.

We will analyse Pesticide Management Bill and 2020 and discuss this in detail in future articles.

Follow this blog and Visit again, more analysis in upcoming articles. Follow on Twitter and Linkedin for regular updates.

If any clarification is required you may contact the authors.

Do send your queries to us at email address: 

Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.

Pesticide Regulations Part-2 : Role of Government in Prohibition or Permission of Pesticides

Pesticide Regulations - Part-2

Role and Obligation of Government in Prohibition or Permission of Pesticides

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness & Consumer Products Industries

&

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

We suggest that, please also read the earlier parts of the Pesticide Regulation Series for better understanding of the arguments used in this article.

When any country wants to become a big player on the world stage, one cannot ignore the expectations of the global community. COVID-19 outbreak has reinforced the need for the countries to become more sensitive towards humanity. Countries are expected to become transparent in their decision-making process and engage with the world community to ensure the collective welfare of all.

The global community expects governments must behave responsibly not just to meet the expectation of the local population within their jurisdiction but also to consider the impact of their actions and decisions on the global the community where they want to expand their trade ties. COVID-19 outbreak will force new obligations on the governments.

In global trade and also under WTO regime health and safety is a major concern. It is a well-known fact that with the spread of trade the health risk also spreads. Therefore a dedicated Agreement on Sanitary and Phyto-sanitary was negotiated to protect human, plant and animal life and health.

With the growth of international trade in agriculture-based products and agro-chemicals with various applications also became a point of policy debates and trade negotiations. 

International Conventions on Pesticides:

To address these concerns, several international instruments dealing directly or indirectly with pesticides or pesticide management have come into force. The most important of these are:

• The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention), 
• The Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention), 
• The Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal (Basel Convention), 
• The Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol)
• The International Labour Organisation Convention No. 184 on Safety and Health in Agriculture (ILO Convention 184). 
• Strategic Approach to International Chemicals Management (SAICM)
• Globally Harmonized System of Classification and Labelling of Chemicals (GHS), which is intended to standardize and harmonize the classification and labelling of chemicals.

Whether a country is a signatory or not, these conversions will impact everyone.

Pesticide Regulation and Management: 

Civil society expects from the Governments around the world including the Government of India to ensure safe and healthy food. Based on the global experiences and collated information, inter-governmental bodies have created a detailed Code of Conduct for the policymakers to ensure safe and healthy options for the consumers by creating regulatory requirements for agro-chemicals.

1. Introduce Regulations: It is advised that Governments should introduce the necessary policy and legislation for the regulation of pesticides, their marketing and use throughout their life cycle, and make provisions for its effective coordination and enforcement, including the establishment of appropriate educational, advisory, extension and health-care services.

2. Use Global references for consensus: It is advised that Governments may create suitable regulatory regime by using the FAO and WHO guidelines, wherever applicable, and use the provisions of relevant legally binding instruments. Please note that FAO and WHO are intergovernmental bodies and reference points in case of disputes under the WTO trade regime.

3. Factor local agro-climatic factors & pest incidences: In so doing, governments should take full account of factors such as local needs, social and economic conditions, levels of literacy, climatic conditions, availability and affordability of appropriate pesticide application and personal protective equipment.

4. Prohibit Child labour in agrochemicals application: International Partnership for Cooperation on Child Labour in Agriculture also advises that the government should introduce legislation to prevent the use of pesticides by and sale of pesticides to children.  The use of pesticides by children in a work situation should be included in National Hazardous Work Lists for children under ILO Convention No. 182 on the Worse Forms of Child Labour in countries which have ratified it.

5. Regulate pesticide businesses: Pesticides are toxic chemicals and it is expected that the government will establish regulatory schemes such as licenses or permits for pest control operators. To ensure proper monitoring of the manufacturing and trade of hazardous chemicals, it is expected that the government should establish pesticide registration schemes and infrastructures under which each pesticide product is registered before it can be made available for specified use.

6. Avoid Non-tariff barriers: Agriculture is an important component of economic development. Cooperation between various trading partner is expected in the trade issues. While framing legislations regulations  should  act as facilitation in trade based on the cooperation with other governments in, the establishment of harmonized (regionally or by groups of countries) pesticide registration requirements, procedures and evaluation criteria taking into account appropriate, internationally agreed technical guidelines and standards, and where possible incorporate these standards into national or regional legislation; 

7. Establish a review mechanism: Allow for re-evaluation and establish a re-registration procedure to ensure the regular review of pesticides, thus ensuring that prompt and effective measures can be taken if new information or data on the performance or risks indicate that regulatory action is needed; export, manufacture, formulation, quality and quantity of pesticides; improve regulations concerning collecting and recording data on import, export, manufacture, formulation, quality and quantity of pesticides; 

8. Promote Safe Applications: To save farmers from accidents only permit standardized and certified pesticide application equipment and personal protective equipment. Permit marketing of equipment under established standards only. 

9. Regulate and monitor pesticide residues in food in accordance notably with the recommendations of the Codex Alimentarius. In the absence of Codex standards, national or regional standards should be used. This should be done in a manner that is consistent with WTO requirements and will not lead to technical barriers in the trade or non-tariff barriers.

10. Ensure transparency to gain the confidence of stakeholders: The only way to gain confidence and the support of all stakeholders is making an effective regulatory regime is by way of transparency. The conflict of interests should be avoided in all committee meetings and decision-making process.

Therefore, the role of the government is very critical in controlling and managing hazardous and toxic chemicals to save people and the environment.

Important: 

The Prohibition Order of 27 pesticides issued by the Government of India should be tested on the above-mentioned parameters. This will be the right approach and all stakeholders can be convinced. 

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