Planting 2016 has begun. A lawsuit brought on January 6, 2016, in a U. S. district court in California has the potential of impacting seeds you plant.

The Center for Food Safety, American Bird Conservancy, Pesticide Action Network plus 5 farmers, are suing EPA seeking to stop the ongoing sale of millions of pounds of crop seeds coated with active insecticidal ingredients. They argue EPA is not requiring the seeds’ registration under the Federal Insecticide Fungicide & Rodenticide Act (FIFRA).

EPA administers FIFRA, which governs what pesticides are commercialized and how they are applied in the United States. A pesticide is “a mixture of substances intended for preventing, destroying, repelling, or mitigating any pest.”

With a few minor exceptions no person in any state can distribute or sell any FIFRA product which is not registered. FIFRA prohibits EPA from registering a pesticide if its use would have “…unreasonable adverse effects on the environment.” The lawsuit raises the question of whether EPA has improperly exempted treated seeds from FIFRA registration and regulation.

Seeds such as corn, cotton, soybeans, canola, barley, sugar beets, etc. can be coated or treated with substances to protect the seed. Such coating does not require a FIFRA registration because the pesticide has been approved previously by EPA.

The lawsuit raises a different point. It says all seed treatments in this case have the purpose of carrying the active (FIFRA) pesticidal ingredient into “…the growing plants’ circulatory system [and] into every living tissue of the plant, which ultimately is typically thousands of times greater in dimension and mass than the crop seed itself.”

Plaintiffs allege the pesticidal coatings on the seed do not “…protect the seed itself against any disease or other risk to the seed while it is in the bag, the planting machine, or the field.”

The farmers and public interest groups are attacking the ingredients known as neonicotinoids. The complaint claims the neonicotinoid ingredient is coated onto a seed and a small fraction is absorbed by the living plant. It further claims that 95% of the neonicotinoid ingredient is scraped off the seed and is lost as dust in planting or remains in the soil and groundwater and therefore ending up in the environment and causing severe damage to honey bees, other pollinators and harming birds and wildlife.

Plaintiffs’ claim EPA is illegally exempting seeds from regulation by FIFRA. EPA does exempt pesticides if they are of a character not requiring regulation.

What protects the seed companies and farmers from having our seed regulated by FIFRA is an EPA exemption declaring “An article or substance treated with, or containing, a pesticide to protect the article or substance itself (for example, paint treated with a pesticide to protect the paint coating or wood products treated to protect the wood against insect or fungus infestation), if the pesticide is registered for such use.”

Plaintiffs claim that the pesticidal dried-on coatings do not protect the seed itself. They claim ingredients such as neonicotinoids protect the crop plants during growth. As a result the plant is being protected and not the seed. The farmers conclude in their complaint saying “…’treated seeds’ is a misnomer for what are in fact neonicotinoid delivery devices.”

Plaintiffs’ conclusion is EPA’s treated article exemption does not exempt our seeds from being regulated as any other pesticide under FIFRA. (EPA will be defending itself and you in this lawsuit. Agriculture groups are intervening.)

Plaintiffs refer to a 2003 document issued jointly by EPA and the Pest Management Regulatory Agency of Canada. The purpose of the document was to “harmonize” how treated seed products are regulated by Canada and the U.S. A summary of this document issued on April 11, 2003, contains interesting language. It says “For the purposes of FIFRA, pesticide-seeds are considered to be pesticides themselves…” The U.S. - Canadian summary continues by describing in 1998 EPA promulgated a regulation exempting certain treated articles such as treated seeds under 2 conditions. 1) “Pesticide use for treatment is registered for such use;” and 2) “The treatment is for the protection of the article or the substance itself.”

The document claims EPA concluded the risk of treated seeds if meeting the two conditions would be adequately regulated by registering the treating pesticide.

Planting season may become much more complicated if all treated seeds need to be registered as pesticides. Remember, EPA is defending agriculture!

The opinions of the author are not necessarily those of Farm Futures or Penton Agriculture.