Environmental Protection Agency Takes Action to End All On-Food Use of Conventional Pesticide Chlorpyrifos

The U.S. Environmental Protection Agency (EPA or Agency) has issued a prepublication rule that will revoke all on-food tolerances for the conventional pesticide called chlorpyrifos and has announced that it will also issue a Notice of Intent to Cancel all food uses for the pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA stated that “taking into consideration the currently available information and the currently registered uses of chlorpyrifos, EPA cannot make a safety finding to support leaving the current tolerances for residues of chlorpyrifos in place” consistent with the Federal Food, Drug, and Cosmetic Act.

Chlorpyrifos is a synthetic insecticide that has been used for agricultural and nonagricultural purposes since 1965. A tolerance is the maximum amount of a pesticide permitted to be left on food products. Once in effect (i.e., six months after publication of the rule in the Federal Register), EPA’s actions will essentially prohibit any future use of the pesticide for agricultural purposes. California, Maryland, New York, and Hawaii, among other states, had already taken similar action.

EPA is taking these steps in direct response to a recent Ninth Circuit Court of Appeals decision that explicitly required the Agency to grant a 2007 petition requesting that all tolerances for chlorpyrifos be revoked, issue a rule revoking the tolerances for chlorpyrifos (or modifying the tolerances if the Agency could determine a safe level), and cancel (or modify) food-use registrations for the pesticide. The EPA under the previous administration had denied this same 2007 petition, concluding that “despite several years of study, the science addressing neurodevelopmental effects remains unresolved and that further evaluation of the science during the remaining time for completion of registration review was warranted regarding whether the potential exists for adverse neurodevelopmental effects to occur from current human exposures to chlorpyrifos.” The Ninth Circuit determined that the previous administration’s denial of the petition was arbitrary and capricious.

At the same time, EPA is actively conducting a registration review of chlorpyrifos as required by FIFRA, the federal pesticide law. The Agency expects to continue evaluating the nonagricultural, nonfood applications for the pesticide and expects to issue an interim decision in 2022.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.