Comments on the U.S. Environmental Protection Agency’s (EPA) proposed policy on nanoscale materials in pesticide products are due August 17, 2011. EPA offers two approaches for obtaining the information EPA believes it needs concerning nanoscale materials in pesticide products. Under the first approach, EPA would use Section 6(a)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to obtain information regarding what nanoscale material is present in a registered pesticide product and its potential effects on humans or the environment. EPA states that it would “prefer” to use this approach, despite industry’s concern over the use of the “adverse effects” reporting provision to obtain information. Under the second approach, EPA would use a data call-in (DCI) under FIFRA Section 3(c)(2)(B). EPA also proposes to apply an initial presumption that active and inert ingredients that are the nanoscale versions of non-nanoscale active and inert ingredients already present in registered pesticide products are potentially different from those conventionally sized counterparts. Registrants could rebut this initial presumption on a case-by-case basis.
At least one non-governmental organization, Friends of the Earth, has created an online petition that urges EPA to consider nanoscale active and inert ingredients in pesticides as new, and to use the FIFRA Section 6(a)(2) method to obtain information. With the comment deadline fast approaching, and the potential complexity, legal vulnerability, and burdens presented by the different options, it is critically important for potentially affected entities to consider carefully the issues and approaches discussed and offer strong and compelling comment of a caliber comparable to the quality and thoughtfulness of EPA’s notice.