Pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the EPA recently announced its intent to cancel the registration of four pesticide products containing the insecticide flubendiamide. The notice identified Bayer CropScience, LP and Nichino America, Inc. (BCS/NAI) flubendiamide products.

The agency contends the companies failed to comply with a required condition of their registrations. Under the condition, each flunbendiamide registrant must submit a voluntary cancellation request if the EPA determines the product causes unreasonable adverse effects on the environment. Per an EPA press release, agency studies showed flubendiamide breaks down into a highly toxic material harmful to species that are part of aquatic food chains. The EPA initiated cancellation of all currently registered flubendiamide products because of BCS/NAI’s failure to comply with the terms of the registration.

After a cancellation notice is published, registrants have 30 days to request a hearing.  FIFRA Section 6(e) provides that the only matters that may be considered in the resulting hearing are whether the registrants have complied with the condition in question and whether the EPA’s determination on existing stocks is consistent with FIFRA.

In a response letter, BCS/NAI rejected the EPA’s request to submit a voluntary cancellation and argued the agency violated due process by attempting to bypass required statutory proceedings. They further argued that continued registration of flubendiamide poses no unreasonable adverse effects on the environment.

According to the National Law Review, an important issue is “whether the EPA can circumvent the adjudicatory hearing that would otherwise be available on the substance of the EPA’s determination concerning risks and benefits by imposing a condition requiring affected registrants to accept the EPA’s determination.”  The EPA will argue BCS/NAI accepted the condition in question when the registrations for flubendiamide were issued.  BCS/NAI will likely counter that the EPA may not use the condition to restrict hearing rights because this conflicts with the intent of FIFRA.

A copy of the EPA’s notice of intent is available here.