Lawsuit Could Put an End to Treated Seeds

May 04, 2016
This doesn't look like a pesticide to us
Rice Grains
WASHINGTON, DC -- A disturbing lawsuit, Anderson et al. v. McCarthy et al, has been brought against the U.S. Environmental Protection Agency (EPA) in federal court by a number of commercial beekeepers, growers and environmental activist groups for not regulating seeds treated with systemic pesticides as pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). These groups allege that dust from the coated seeds has harmed the environment, including honey bees and birds.


EPA currently regulates the pesticides used as seed treatments.  A seed may not be treated with a pesticide unless EPA has specifically approved the pesticide for use as a seed treatment on that seed.

However, seed is regulated by USDA and individual states.  Currently seed bag tags are clearly marked with the active ingredient used in the seed treatment. There are additional requirements for language on the seed tag for neonic-treated seed.  The treated article exemption for treated seed, which is referenced in the lawsuit, is a longstanding policy of EPA. An article is exempt from regulation under FIFRA by virtue of the treated article exemption if the following three conditions are met:

  • the article contains, or is treated with, a pesticide;
  • the pesticide is intended to protect the article itself; and,
  • the pesticide is registered for this use.


Treated seeds meet all of these requirements
and thus meet the definition of a treated article.

“If rice seeds are registered as a pesticide it could put a heavy burden on growers because each planting will be considered a pesticide application,” said Dr. Steve Linscombe, Director of the LSU Ag Center.  “Each farmer could have to register as a pesticide applicator and meet the educational requirements.  In addition, the regulations could easily become overwhelming, basically giving control of planting decisions to EPA as each seed would need to be registered as a pesticide pursuant to FIFRA.  When you potentially incorporate this process into new, incoming regulations including the revised Worker Protection Standards, the Applicator Certification Rule, and WOTUS, you may be seeing the end of treated seeds.”

While EPA acknowledged in its January 4, 2016 preliminary pollinator assessment for imidacloprid that it posed a low-potential risk to bees when used as a seed treatment, EPA’s response to the lawsuit is unknown at this time.  USA Rice staff and members met with EPA earlier this year on this issue and USA Rice continues to be engaged on the issue and will encourage EPA to mount a vigorous defense against the lawsuit.