How the Government Got in Your Backyard

by Jeff Gillman

  But these findings don’t necessarily have anything to do with humans. We are mammals after all, not amphibians or fish. Still, our organs are basically the same as those found in frogs or salmon, so it is hard not to speculate about what atrazine and other poisons might do to young, developing boys and girls. While we have no powerful evidence at this time that low concentrations of pesticides are hurting us, neither do we know for sure that repeated exposure to a low dose of any given pesticide or mixture of pesticides is perfectly safe.

  Government Policy

  National government regulation and inspection of food began in 1906 with the Pure Food and Drug Act and the Meat Inspection Act. President Theodore Roosevelt pushed Congress to pass the Meat Inspection Act in response to public outcry about the working conditions and health hazards in the meatpacking industry as depicted in Upton Sinclair’s novel, The Jungle. This act empowered the Department of Agriculture to inspect food processors, and was supported by many food manufacturers who wanted to purge unscrupulous operators from the business. While it didn’t restrict pesticide use, the act did open the door for the government to have a say about the quality of the food that we buy.

  By the late 1930s and 1940s, technology was revolutionizing farming. Synthetic fertilizers and pesticides came into widespread use, theoretically making food production cheaper and more efficient. But farmers were worried that this new technology might be ineffective or dangerous. The chemical companies themselves wanted government to screen out fly-by-night operators and believed that national standards were preferable to a patchwork of state regulations. Congress initially responded with the 1938 Food, Drug, and Cosmetics Act, which required manufacturers to file test results for new products with the Food and Drug Administration (FDA). However, companies could declare test data or chemical formulas to be trade secrets to avoid providing them to the FDA. Even worse, the 1938 act prevented the FDA from testing and clearing a product before it hit the market. To remove chemicals from the market, the FDA had to prove in court that they were dangerous. The product was literally considered innocent until proven guilty. This understandably concerned many people because some highly toxic substances were being used at the time, including many that contained arsenic. Most people who were aware of the situation knew that stronger legislation was needed.

  The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) of 1947 was tougher than its predecessors on the pesticide companies. It balanced the economic potential of the new methods of pest control with the potential human and environmental costs of those methods. FIFRA stated that pesticides should not cause “unreasonable adverse effects on the environment,” but it also required regulators to account for the “economic, social, and environmental costs as well as the potential benefits of the use of any pesticide.” All farming chemicals had to be registered for each of their intended uses, and manufacturers were required to provide adequate data from tests of the chemical’s effects on human health and the environment.

  In 1954 the Food, Drug, and Cosmetics Act (FDCA) was amended to require the FDA to determine “tolerances”—the maximum levels of chemical residues—that would be allowed on all raw and some processed foods. The 1958 Delaney Amendment (to the FDCA) went further, banning cancer-causing chemicals on commodities used in processed foods. Although it seems reasonable and obvious that cancer-causing chemicals should not be allowed in the foods we eat, the practical effects of the Delaney Amendment became increasingly stringent—and controversial. Over time, testing equipment had become more advanced, which made lower levels of potentially cancer-causing chemicals detectable, even though such low levels would not be likely to cause health problems. Additionally, the different standards applied to raw and to processed foods became increasingly problematic as the number and varieties of processed foods increased, and more kinds of raw foods were used to produce them. The final use of many raw foods was hard to determine ahead of time by the farmer, so it was difficult for the farmer or processor to know exactly how to handle the raw food to meet the proper standard. It also was hard for the government (or manufacturer) to trace an ingredient in a processed food back to its origins to ensure that it had been treated properly.

  The FDA announced in 1969 the beginning of a two-year phaseout of DDT for all but “essential” purposes. It was the first time the government had forbidden the use of a pesticide because it inherently posed potential dangers, not because it was mislabeled, adulterated, or misused. In some ways, however, DDT was an easy target. In addition to the public concern generated by Silent Spring, its effectiveness had been declining as many insect species developed resistance. This made its future look increasingly unprofitable. Besides, chemical manufacturers could be assuaged by the fact that farmers would need to shift to costlier replacements that were coming onto the market.

  In the 1970s, the government’s concern with its environmental image led to the creation of the Environmental Protection Agency (EPA) and the Federal Environmental Pesticide Control Act (FEPCA) of 1972, which allowed the new EPA to determine what data chemical manufacturers needed to submit with each application to evaluate the safety of their product for the ecosystem. In essence, the same pesticide would have to get approval from multiple agencies: the FDA evaluated the effects that consumption of food residues had on humans, the EPA evaluated environmental impacts, and the Occupational Safety and Health Administration (OSHA) evaluated workplace safety, among other agency reviews. FEPCA had multiple goals and forced the EPA to ensure that chemical pesticides were safe, environmentally benign, and effective. Each of these goals is obviously worthwhile, but they also have the potential to be conflicting. For example, a chemical may be effective at killing pests, but not safe for humans or the environment. Unfortunately, this act gave the EPA little guidance on how to resolve such contradictions. Under FEPCA, the EPA had to register products, including those already on the market, without having a standardized system for evaluating them. Studies for some products were ten to twenty years old. To speed up registrations, the EPA ended up skimming through files for the presence of test data and made little effort to verify the validity of the information.

  The next twenty years brought a policy stalemate as producers and environmental and consumer groups struggled over how the EPA should evaluate pesticides and their food residues. Then, in 1989, the Alar scare brought things to a head. Alar was a chemical used by apple producers that made all of their apples ripen at the same time. This saved a great deal of labor at harvest time. Unfortunately for apple producers, studies began showing up that suggested Alar was carcinogenic. Not all studies indicated this, and the number of apples that an individual would need to ingest to cause a problem was quite high, even in a worst-case scenario. Nonetheless, major news outlets including 60 Minutes aired the story, causing a tremendous backlash against the use of this chemical and an intense concern about the residues of other chemicals. The stalemate broke in the early 1990s as federal appellate courts ruled that both raw and processed foods must meet the strict Delaney standard, substantially limiting the presence of chemicals in food products. The court’s 1992 ruling in Les v. Reilly would have forced the EPA to follow the Delaney clause and cancel the use of several commonly used chemicals. It was never enforced, however, because the Clinton administration proposed a single standard for raw and processed foods, removing the requirement that economic considerations be taken into account when determining food safety regulations, and replacing the Delaney Amendment’s ban on cancer-causing chemicals with requirements based on the amount of risk posed by the chemical. Congress unanimously passed the Food Quality Protection Act (FQPA) of 1996.

  EACH federal agency charged with addressing the dangers of hazardous chemicals has its own mission, priorities, clientele, and way of viewing the world. Often, there are significant barriers to cooperation among these agencies. The USDA, for example, sees the world from the perspective of the farmer and is most concerned with producing an abundant food supply. The EPA sees
the world from an ecological perspective and is most concerned with the health and environmental effects of the chemicals that farmers use on their fields. The FDA sees the world from the public health perspective and is most concerned with the health and safety of food products.

  The multiplicity of agencies involved in regulating hazardous chemicals is not unusual, nor are the problems created by trying to coordinate policy across multiple agencies. Congress creates the agencies at different times and for different purposes. When it passes a new law it tends to add a new box on the existing organizational chart rather than fighting battles with existing agencies and their clienteles to create a more streamlined organizational chart.

  The Food Quality Protection Act directs the EPA to review all pesticide tolerance rules to ensure that they adequately protect children and infants, since children may be at greater risk than adults at previously accepted levels of pesticide residue. The act also requires the EPA to analyze the combined toxic effects of multiple pesticides for an individual’s “aggregate exposure”—both dietary and occupational (including use on lawns). In place of the Delaney clause, the FQPA requires a “reasonable certainty” of no harm from residues on food, defining reasonable certainty as a one in a million chance of the residue causing cancer or another major health ailment. Other food additives would still be subject to the Delaney clause’s zero risk standard. In essence, Congress told the EPA to figure out which chemicals were “too dangerous” and let the EPA take the political heat from those who thought particular chemicals were being treated too leniently or too stringently. Congress established a timeline for the EPA, giving it until 2006 to review the tolerances it had established prior to the FQPA to ensure that each met the new standards. The challenge for the EPA was that it would have to review the tolerances of 9700 chemicals. Just a small bit of homework for the EPA, in addition to its other responsibilities. But in August 2006, the EPA announced that it had met the FQPA deadline for reassessing pesticide tolerances.

  The FQPA also preempted any state standards on food residues, meaning that pesticide manufacturers and users had to meet one national standard rather than many state or local government restrictions. Nonetheless, state and local governments can regulate pesticides for other purposes. California, for example, banned the pesticide lindane in 2002 for pharmaceutical use. The FDA, however, still permits this insecticide to be used by physicians for treating lice and scabies. Different executive agencies can and do reach different conclusions about the risks and benefits of a pesticide.

  The Political Dynamics

  Members of Congress are not chemists and would prefer not to make judgments regarding which chemicals are unsafe. Most members do not want to antagonize farmers, chemical manufacturers, or retailers who conduct business in their districts or who contribute to their campaigns. Nor do they wish to be seen as less than enthusiastic about protecting the health of their constituents. Many members of Congress would be perfectly happy if scientists came before them and all agreed that “this pesticide is safe, allow it” or “this pesticide is unsafe, ban it.” They would then have a clear policy direction and would trust the evidence on which they were making that decision. But scientists rarely develop a quick consensus, leading politicians to trust their own predispositions rather than expert advice. As political scientist Christopher Bosso concluded in his study of pesticide regulation: “That scientists of equally impressive credentials disagreed vehemently about the side effects of pesticides . . . very likely forced members [of Congress] to base their decisions more on initial biases than on the weight of scientific evidence.”

  Fortunately, members of Congress have a way out. By passing laws that order executive branch agencies to implement the legislation and make the tough choices, they can pass the buck and effectively get themselves out of potentially sticky situations. FIFRA, for example, orders the USDA to take action against environmentally damaging pesticides, and to make sure that their actions have minimal economic impact. The USDA has to make the tough calls about how to balance the hazards of pesticide use against harm to the economy, not Congress. After the USDA has acted and local farmers (or environmental activists) complain, then the local member of Congress can swoop in and criticize the agency regardless of the decision it has made. Similarly, Congress stalled for years in its consideration of the Food Quality Protection Act, with members unable to agree which pesticide residues posed a health risk. Once the federal courts forced their hand, Congress passed the buck to the EPA and ordered them to review all chemical residues and determine which ones failed to meet the new standards of the law.

  Congress usually requires that all affected parties be able to participate in the executive branch’s decision-making processes, which means that the disagreements the various groups had during congressional debate, when the law was first constructed, will not go away as the agency decides how to implement the law. Environmental organizations actually quit the EPA’s Pesticide Advisory Board in April 1999, claiming that the EPA was moving too slowly and was caving in to chemical manufacturers and farmers as it tried to develop methods to evaluate pesticide residues and comply with the Food Quality Protection Act. Meanwhile, the agency often does not have the funding or staff to undertake its current mission effectively, let alone do the new activities required by Congress under the deadlines and restrictions it has imposed. Inevitably, someone is likely to be upset—whatever decision the agency makes—and appeal the decision to Congress or the courts.

  The courts then step in to interpret the law and determine whether or not the agency is acting in a manner consistent with the law passed by Congress. Court decisions also spur Congress to act, as occurred in the Food Quality Protection Act, following a court’s ruling that the Delaney amendment—banning cancer-causing chemicals from food items—must be applied to both raw and processed foods. The court’s action dramatically increased the cost to both Congress and the chemical manufacturers of a failure to compromise, and a compromise quickly ensued.

  The main problem caused by the morass of agencies and rules regulating hazardous chemicals is that there is no clear and consistent definition of acceptable risk in federal law. Congress has either allowed agencies to define acceptable risk for themselves, or it has listed so many criteria for risk determination that the decisions get bogged down while an agency tries to decide which criteria have priority. It’s not uncommon for different agencies to allow different levels of exposure to the same chemical, depending on the purpose for which the chemical is being used. The result is that there is no single, straightforward answer from the government to the question, is this chemical dangerous? It depends on the purpose the chemical is used for and the risk standards that apply to that purpose. Food residues are subject to low standards of risk, while using chemicals on your yard or field are subject to higher levels of risk.

  CONGRESS can choose to follow science closely or disregard it completely, depending on whatever its members believe their constituents, parties, or consciences want. But the Supreme Court has set high standards of scientific proof for agencies of the executive branch in issuing regulations. In Industrial Union Dept., AFL-CIO v. American Petroleum Institute (1980), the Court ruled that agencies must demonstrate a factual basis, not merely a well-reasoned professional judgment, to justify proposed regulations. To meet these standards, executive branch agencies often develop organizational structures to gather and use scientific expertise in their policymaking. The EPA, for example, has a Science Advisory Board of independent experts drawn from a number of fields and backgrounds who advise EPA administrators on scientific issues, a Science Policy Council of EPA scientists who advise EPA administrators, a peer review policy to make sure that scientists who provide external reviews of EPA policies are qualified and independent, and staff that monitors the scientific quality of the research done by EPA specialist scientists (in air pollution or toxics, for example).

  Several trends in the politics of pesticides are clear. First, more ty
pes of groups are getting involved, which is increasing the level of conflict and making compromises harder to forge. Prior to the 1960s, decisions regarding pesticide policies were usually made by the farming and chemical manufacturing communities, with the goal of producing effective pesticides. Since then, environmental and consumer groups have played a prominent role and have put much greater weight on the possible negative effects of pesticides. Second, the burden of proof is shifting toward chemical manufacturers having to prove that their products are safe and environmentally benign before they are labeled for use. Policy is increasingly protecting the public from chemical products rather than protecting manufacturers from government bureaucrats run amok. Third, science itself has developed much more sensitive and sophisticated ways of measuring and analyzing the presence and effects of chemicals, so we are becoming more and more aware of the possible negative effects of pesticides. Today, for example, scientists can analyze not only whether DDT kills birds or causes cancer in humans, but also whether it is an endocrine disruptor, a chemical that interferes with hormones responsible for normal functions such as brain growth and sexual development. As scientific understanding changes, so does the application of government regulations that are based on science. As a consequence, legislation governing the regulation of pesticides is a long way from being complete, as is the interpretation of this legislation by the EPA, FDA, OSHA, and other agencies.