September 16, 2019

September 16, 2019

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EPA Seeks Public Comment on First-Ever Hemp Pesticide Applications

On August 21, 2019, the U.S. Environmental Protection Agency (EPA) announced its receipt of ten applications seeking to add new hemp uses to pesticide products registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). These submissions represent the first such applications received by EPA since last year’s passage of the Agricultural Improvement Act of 2018 (commonly known as the Farm Bill), which removed industrial hemp from its earlier classification as a controlled substance under the jurisdiction of the U.S. Department of Justice (DOJ). EPA is also opening a 30-day public comment period upon publication of notice in the Federal Register. 

Industrial hemp is considered any part of the cannabis plant with no more than 0.3 percent of tetrahydrocannabibol (THC) on a dry weight basis. Farm Bill Sec. 10113 (amending 7 U.S.C. 1621 et seq.). To date, EPA has not registered any pesticides for use on cannabis, citing the illegal status of cannabis under federal law, and as recently as 2017, had turned down efforts by certain states to approve “Special Local Needs” registrations under FIFRA Section 24(c) that would have allowed cannabis uses for pesticides within those states. With the legalization of industrial hemp under the Farm Bill, however, EPA now has an opportunity to consider approving nationwide, registered pesticide uses on hemp grown in full accordance with federal law.

The active ingredients contained in the registered products subject to the newly received hemp use applications are:

  • Azadirachtin

  • Neem oil

  • Extract of Reynoutria sachalinensis

  • Bacillus amyloliquifaciens strains

  • Soybean oil

  • Garlic oil

  • Capsicum oleoresin extract

  • Potassium salts of fatty acids

According to EPA, the availability of FIFRA-registered pesticide products “will likely be essential to supporting the success” of the hemp production industry going forward. EPA notes that it is providing an opportunity to comment at this time due to “potential significant interest from the public” and to further EPA’s transparency goals. EPA does not view itself as statutorily required to provide this comment opportunity and does not anticipate notifying the public of its receipt of similar applications in the future. In its notice, EPA explains that because hemp falls under existing terrestrial outdoor and residential outdoor use patterns previously assessed and approved by EPA for the subject products, the FIFRA section 3(c)(4) requirement to publish notice of any application that entails a “changed use pattern” is not triggered. 

Hemp farmers, pesticide manufacturers, and other ancillary businesses supporting the hemp industry should take advantage of EPA’s public comment opportunity. On July 25, 2019, the US Senate’s Committee on Agriculture, Nutrition and Forestry conducted a detailed hearing on hemp, at which Committee members stated that government agencies should work in a cooperative manner to ensure that regulatory processes are constructed with robust communication and input from all involved. The overwhelming public interest in hemp, combined with statements from multiple federal agencies evincing an intent to work together, suggests that public opinion will continue to influence the development of thorough, common-sense regulations for an industry seeking guidance on how it can comply with the law. 

© 2019 Beveridge & Diamond PC

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About this Author

Alan J. Sachs, Beveridge Diamond, Food biotechnology lawyer, bioenergy industries attorney
Principal

Alan’s practice focuses on the wide range of regulatory issues faced by the global agriculture, food, biotechnology, and bioenergy industries. His practice includes all aspects of the U.S. Environmental Protection Agency’s (EPA) regulation of pesticides, including the manufacture, import, distribution, labeling, registration, and use of all types of consumer and agricultural pesticide products under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). As part of his FIFRA legal practice, Alan frequently supports the data rights objectives of Beveridge &...

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Chris Strunk, Beveridge Diamond, Environmental lawyer
Of Counsel

Chris counsels clients on toxic tort, commercial litigation, and business transactions, with a focus on complex litigation involving the defense of toxic injury product liability and premises liability claims involving asbestos, mold, and airborne and water-borne contaminants and chemicals.

He represents multinational manufacturers of heavy industrial equipment, such as valves, pumps, and automobile engine gaskets and brakes; flooring material manufacturers; pesticide and fertilizer manufacturers and suppliers; and chemical and petrochemical companies.

Chris has successfully defended cases involving exposure to contaminants at sea (and in port) under federal maritime law, including Jones Act claims and claims brought under the Longshore and Harbor Workers' Compensation Act, as well as claims involving premises owners and alleged toxic exposures on those premises. He also has experience with litigation involving federal (including the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act) and state environmental statutes. He is also adept at overseeing and managing complex litigation in a national counsel role and has spearheaded coordination of statewide discovery and investigation for several major industrial manufacturers.

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Kathryn E. Szmuszkovicz, Biotechnology Attorney, Beveridge Diamond Law Firm
Principal

Ms. Szmuszkovicz chairs the Pesticides and Biotechnology Section of Beveridge & Diamond, P.C.'s Litigation Practice Group. She litigates and provides alternative dispute resolution, compliance, strategic planning, and commercial services for clients who manufacture, sell, and use products regulated by EPA, USDA, FDA, DOI, DOC, and analogous state agencies under the broad range of environmental, health, and safety laws that these agencies implement. She holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, is named in the 2013 edition of both Best Lawyers...

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