16
Apr
Action Alert: EPA Proposes Weakening Food Packaging Rule (Again)
(Beyond Pesticides, April 16, 2007) In the April 6, 2007, Federal Register (72 FR 7068-17071), the Environmental Protection Agency (EPA) has once again proposed a rule that would weaken the regulation of pesticide-treated food packaging. The rule seeks to exempt from the definitions of “pesticide chemical” and “pesticide chemical residue” under section 201(q) of the Federal Food, Drug and Cosmetic Act (FFDCA) food packaging (e.g., paper and paperboard, coatings, adhesives, and polymers) that is treated with a pesticide. Beyond Pesticides is encouraging the public to oppose the rule.
The agency previously proposed the rule as a “Direct Final Rule” on December 6, 2006, circumventing the public comment process. After Beyond Pesticides objected to the use of this process, EPA withdrew the rule in a February 2, 2007, Federal Register notice (72 FR 4963). This time around, it is a “Proposed Rule” that is otherwise identical to the earlier version.
Pesticide-treated food packaging is a potential threat to the public’s health. The average consumer is unaware of the potential dangers associated with pesticide food residues from packaging and will not be alerted in the absence of labeling practices that disclose this information.
The proposed rule comes at a time when the agency has received increased applications for a wider variety of pesticide treated food packaging products. Due to this trend, Beyond Pesticides feels weaker regulation is inappropriate, citing existing gaps in the pesticide regulatory system, and has asked EPA and the Food and Drug Administration to require full reviews for pesticidal action of packaging, residues on food, and non-toxic strategies for food packaging.
TAKE ACTION: Submit comments to EPA on or before April 23, 2007, identified by docket ID number: EPA-HQ-OPP-2007-0175. You may file online at the Federal eRulemaking Portal: http://www.regulations.gov, or by mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
Consider the following points in your comments to EPA:
1. Definition of inert: The rule, in not defining inert, adopts the definition of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). As interpreted by EPA, the definition of inert casts a broad net that includes materials classified as toxic under the Comprehensive Environmental Response, Compensation, and Liability Act (CERLA), pesticides under FIFRA as long as a pesticide claim is not made by the registrant, and toxic materials under other statutes. These toxic chemicals should be reviewed in the context of the tolerance setting process. EPA’s regulatory review of inert ingredients has been the subject of considerable controversy and the rule’s reliance on this categorization raises serious issues that may enable pesticides to avoid necessary regulatory review.
2. Pesticidal purpose or pesticidal characteristics: Under the proposed rule, a pesticide may be exempt from regulation under the Federal Food Drug and Cosmetic Act (FFDCA) section 408 as a pesticide chemical residue if the manufacturer of the packaging does not make a pesticidal claim or state a pesticidal purpose. Under this scenario, the proposed rule creates a loophole that must be closed. For food consumers, the question is whether the use of a substance is known to have pesticidal characteristics, regardless of a pesticidal claim, is being used and whether its use creates residues.
3. Expansion of 1998 rule exception (40 CFR 180.4): The expansion of 40 CFR 180.4 requires a more in depth review and analysis of the impact that the 1998 decision has had on food safety, and this rulemaking would be an appropriate time. The 1998 exception may be ill-founded, especially given the proposed expansion. While an ingredient of packaging may be defined by EPA as “inert” (which may be biologically and chemically active, and under other circumstances classified as a pesticide) and it is a component of food packaging material, this classification does not ensure protection from possible food residues.
4. FDA and sole jurisdiction: While FDA may be given sole jurisdiction over food packaging that should not exempt those toxic pesticides in food packaging from review under section 408 of FFDCA, particularly in the case of food packaging for which there are no pesticidal claims even though it may contain pesticides.
5. Section 201(q)(3) of FFDCA, as amended by the Food Quality Protection Act (FQPA): Section 201(q)(3) of FFDCA, as amended by the Food Quality Protection Act (FQPA), does not support the proposed action. The exception from the definition of pesticide chemical can be triggered under this provision if the manufacturer of the packaging does not make a pesticidal claim. EPA has long held that without a pesticidal claim for a product the agency does not treat the toxic substance as a pesticide. As a result, there are a host of consumer products on the market that contain pesticides for which manufacturers do not make pesticidal claims and skirt regulatory review for adverse impacts on health and the environment. As a result, under the proposed rule, a pesticide could be incorporated into packaging material, result in a residue on food, while avoiding regulatory scrutiny.
6. EPA jurisdiction: While the rule justification states that EPA’s jurisdiction under FIFRA is retained under 408, it does not require EPA to act in the case of pesticide components for which there are no pesticidal claims.
