Will Australia follow the American ban on Endosulfan?

By Joe Lederman

FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, June-July 2010

The United States has announced a ban on the use of the pesticide Endosulfan. FoodLegal Bulletin previously has written on this issue twice and about the need to review the Australian position. In this article, we consider the current bottleneck in Canberra on this issue.

On 9 June 2010, the United States Environmental Protection Authority (‘US EPA’) announced that the United States will ban the pesticide Endosulfan. The US EPA stated that Endosulfan can pose unacceptable neurological and reproductive risks to farm-workers and wildlife, and can persist in the environment (see the release here).

This move in the US follows the earlier banning of the chemical in New Zealand by the New Zealand Environmental Risk Management Authority in December 2008.

FoodLegal Bulletin has previously written on this issue, in April 2009 in an article entitled ‘Australian regulation of agricultural and veterinary chemicals: Who is having two-headed fish for dinner?’ The case of the two-headed fish on Queensland’s Sunshine Coast is now the subject of court proceedings against a nearby macadamia grower who used the chemical.

The US ban places pressure on the Australian Pesticides and Veterinary Medicines Authority (APVMA) which had previously concluded that a ban of Endosulfan in Australia was unnecessary. This followed a review in 2005 by the APVMA.

The US EPA has stated that its announcement follows ‘new data’ showing the ‘risks faced by workers are greater than previously known’. The APVMA has reacted by a media release dated 10 June 2010 (click here) noting the US EPA’s decision, but stating that:

‘The APVMA is not aware of any current evidence suggesting a similar occupational health and safety risk to Australian farm workers. Tight controls placed on endosulfan in Australia in 2005 addressed this risk. Recent advice from the Australian Government Department of Health and Ageing has confirmed that these controls adequately protect human health.’

The Australian Government Department of Health and Ageing’s Office of Chemical Safety and Environmental Health (OCSEH) issued a report (current as of 31 March 2010), which maintained that the acceptable daily intake of Endosulfan is 0.006 mg/kg bw. That report was published online at http://www.health.gov.au/internet/main/publishing.nsf/Content/E8F4D2F95D616584CA2573D700770C2A/$File/ADI-report-may10.pdf (Click here.)

However, the APVMA has now acknowledged the continuing environmental risks outside Australia and has sought advice from the Australian government Department of Environment, Water, Heritage and the Arts on ‘whether these risks trigger legislation that might enable the APVMA to take action on endosulfan in Australia’. An article in The Age newspaper in Melbourne on 11 June 2010 reported that the review would take a month to complete.

The questions FoodLegal asks are:

  1. Why the APVMA has to go through such a cumbersome process to ban a dangerous chemical?
  2. Why does the APVMA react but not take the initiative on its own?

Once again, when it comes to examining the safety of agricultural chemicals and pesticides, Canberra is a follower rather than an initiator. The current review has been prompted by a decision taken elsewhere, and reveals a lack of initiative on the part of an important Australian Government agency responsible for protecting Australians from potential adverse health effects of agricultural chemicals affecting foods. In this instance, Australia has yet to follow the lead given by 64 other countries that have already banned Endosulfan.

FoodLegal Bulletin has previously commented on the failures of Government accountability and the easy shifting of responsibility between a multitude of separate Government authorities that are all involved in decision-making processes without necessarily being found to be the ultimate decision-makers. This point was made in an earlier issue of FoodLegal Bulletin where we published a letter to the FoodLegal Bulletin editor received from FSANZ’s Chief Executive Officer Steve McCutcheon (in our June-July 2009 issue) stating that responsibility for initiating changes in Australia’s Maximum Residue Limits lies with the APVMA.

While FSANZ stated that it had to wait until the APVMA takes action, because the use of Endosulfan in food production is not considered a food safety issue which is not the responsibility of FSANZ, it now seems clear that the APVMA is able to pass some of the decision-making responsibilities further up the line to both the Federal Department of Health and Ageing (which claims to rely upon its Office of Chemical Safety and Environmental Health) as well as the Department of Environment, Water, Heritage and the Arts.

At this stage, because the US ban is focused the environmental impact on farm workers and wildlife, it may still be possible that Australian food exporters whose product has been grown with Endosulfan on the farm to export to the US. However, that position could change.

This is general information rather than legal advice and is current as of 12 Dec 2015. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.