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Dow Invokes NAFTA To Challenge Canadian Pesticide Bans

(Beyond Pesticides, October 30, 2008) In an effort to keep its popular yet toxic herbicide 2,4-D on the market, Dow AgroSciences has filed a notice with the Canadian government claiming that Quebec’s ban on cosmetic use of pesticides breaches legal protections under the North American Free Trade Act (NAFTA). The company is likely to pursue compensation from Canada’s federal government under Chapter 11 of NAFTA, which restricts a country from taking measures “tantamount to nationalization or expropriation” of an investment. Despite the threat of legal action, Ontario, which instituted restrictions similar to Quebec’s earlier this year, says it will go ahead with its ban.

Public health and environmental advocates have raised concerns that companies are using NAFTA to prevent governments from taking actions to regulate pollution and health threats, and they also warn that the companies’ actions may have a serious public backlash. Chapter 11 of NAFTA is just one of the legal avenues pesticide manufacturers have to make stricter pesticide regulation cumbersome, expensive, and in some cases impossible. For example, 41 states in the U.S. have preemption laws that prohibit municipal authorities from creating pesticide regulation that is more restrictive than the state’s. In a statement that could equally apply to preemption laws, Kathleen Cooper, a senior researcher with the Canadian Environmental Law Association, says she is troubled that chemical producers can invoke NAFTA in an effort to “undermine the decisions of democratically-elected governments.”

Dow’s legal brief accuses the Quebec government of implementing a pesticide ban that “is not based on science.” Like many pesticide cases, it boils down to a battle over which scientific studies should be used in assessing pesticide risk, and how much risk is acceptable, especially in a situation in which the use in question is purely cosmetic. Quebec and Ontario’s bans do not restrict golf course and agricultural uses.

There is a large body of scientific literature that outlines numerous risks of 2,4-D. It has been linked to cancer, reproductive effects, endocrine disruption, kidney and liver damage, is neurotoxic and toxic to beneficial insects (such as bees), earthworms, birds, and fish. Scientific studies have confirmed significantly higher rates of non-Hodgkin’s lymphoma for farmers who use 2,4-D than those who don’t; dogs whose owners use 2,4-D on their lawns are more likely to develop canine malignant lymphoma than those whose owners do not. Despite the known health and environmental effects of 2,4-D, it is the top selling herbicide for non-agricultural use, such as lawns, in the United States. It is also the fifth most commonly used herbicide in the agricultural sector and total annual usage in the U.S. tops 40 million pounds.

The action by Dow is not the first time a company has taken action under Chapter 11 of NAFTA regarding pesticide regulation. Arbitration is ongoing in a case over which U.S.-based Chemtura Corporation sued the Canadian government for $100 million in damaging because it moved to ban the use of lindane as a seed treatment. Lindane has since been banned as a seed treatment in the U.S., and Mexico (the third country in NAFTA) has proposed to list lindane under the Stockholm Convention as a persistant organic pollutant (POP).

Whether Dow pursues legal action following its notice remains to be seen, but Rick Smith, executive director of Environmental Defense says Dow is “quite transparently” trying to put a halt to pesticide bans that are spreading throughout Canada. However, he predicts that Dow will face a backlash from the Canadian public, which is responsible for paying the legal fees of any arbitration and has overwhelmingly been supportive of stricter pesticide controls.

Sources: The Embassy Magazine, The Globe and Mail


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