Chlorpyrifos Ban or Limits on Allowable Levels in Food Must Be Issued By EPA, Appeals Court Rules

A federal appeals court in California has ordered U.S. environmental regulators to either ban the pesticide chlorpyrifos, or reduce the amount of residue that is allowed in food.

In an opinion (PDF) issued on April 29, the U.S. Court of Appeals for the Ninth Circuit determined that the U.S. Environmental Protection Agency (EPA) should have taken actions years ago to protect the public from chlorpyrifos.

The decision came in response to a lawsuit filed by a number of consumer advocacy and safety organizations, leading the court to determine that the EPA abdicated its statutory duty by failing to regulate the chemical.

Chlorpyrifos was first put into use in 1965. Although health concerns led to a ban on household use in 2001, it is still applied on more than 40,000 farms nationwide, for 50 different types of crops, including grapes and almonds. It has been sold under a variety of brand names, including Dursban and Lorsban, as well as Scout, Empire, Eradex, and Warhawk.

In 2014, the findings of a study led chlorpyrifos to be added to a list of 11 chemicals identified as developmental neurotoxins, which may damage developing brains and reduce intelligence. Researchers indicated chlorpyrifos, along with other chemicals, may cause neurodevelopmental disabilities in children, including autism, attention deficit hyperactivity disorder (ADHD) and dyslexia.

“The EPA has recognized that when pregnant mothers are exposed to chlorpyrifos residue, this likely harms infants in utero. This proceeding began in 2007, when two environmental non-profit organizations filed a petition asking the EPA to prohibit foods that contain residue of the insecticide chlorpyrifos,” the court’s opinion states. “The EPA declined to take final action on the 2007 Petition for more than a decade. This Court issued multiple writs of mandamus requiring the EPA to move forward.”

The EPA denied the 2007 Petition, and in 2019 made a controversial decision to allow chlorpyrifos to stay on the market in the United States, despite numerous objections and studies linking the pesticide to serious health risks. Since then, several states have either filed complaints against the EPA over the decision, or say they plan to do so.

In September 2020, the EPA released a draft risk assessment on the pesticide, saying that the agency believed there was no risk to children’s health when used as intended. However, shortly after, the New York Times published a report revealing that the assessment actually flew in the face of conclusions by the agency’s own scientists, who determined the chlorpyrifos exposure could stunt a child’s brain development.

The panel has ordered the EPA to issue a final regulation within 60 days. The appeals court notes that, under the EPA’s own regulations, it can only leave the current tolerances for chlorpyrifos in effect if it finds it to be safe for the general population and for infants and children. However, the decision notes that the EPA failed to make such a finding, essentially meaning they cannot legally deny the petition and must act to ban or limit chlorpyrifos’ presence in food.