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Carbofuran is a pesticide used to control insect infestation on foods including rice, bananas, coffee, and sugarcane. In 2006, the EPA concluded that human exposure to carbofuran was "above the agency's level of concern" and and sought to limit exposure by "revoking all carbofuran tolerances" which would "effectively ban the use of carbofuran on both domestic and imported food for human consumption." The EPA, however, acknowledged that "exposure to carbofuran from imported food alone is safe."
The EPA regulates pesticides pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., and the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. § 356a. Under the FFDCA, EPA "determines the maximum amount of a pesticide residue, which the statute terms a 'tolerance,' that may remain on or in raw or processed food." The EPA may establish or leave a tolerance in effect only if it is "safe," but "if deemed 'unsafe' and 'adulterated' the food may not be moved in interstate commerce."
The process for revoking an existing tolerance involves a "multi-step process" in which it first publishes a notice of the proposed revocation and provides a period for public comment. Then, taking comments into account, it issues a final rule. Next, there is an "objection stage" in which individuals may file objections.
The court found that the EPA's revocation of the import tolerances for carbofuran was "arbitrary and capricious" in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because "the EPA itself considered the tolerances safe."
To read the full text of the DC Circuit's opinion, click here.
Posted: 08/11/2010
