Allowing a very toxic pesticide when the dangers are known: a gross negligence potentially inflicting grievous bodily harm?

All too often a very toxic pesticide is still in use, many years after the dangers have been demonstrated by an impressive amount of scientific evidence. This information should play a key role in the pesticide assessment by EFSA and national authorities, as the European Court of Justice recently reaffirmed. Governments have a legal duty to watch over people's health. But what if very clear and convincing scientific evidence is not used, or even brushed aside? Couldn’t that be classified as gross negligence or even complicity in inflicting grievous bodily harm? These are serious offences under criminal law. Let us have a closer look at the case of the fungicide difenoconazole. We recently asked the European Commission for clarification on the delayed decision on the non-renewal of this pesticide. At the same time, PAN Netherlands has asked the Dutch authorities to withdraw the authorisation for 26 products containing this substance.

Difenoconazole is a broadband systemic fungicide, authorised in pesticide products across all 27 EU Member States. It is widely used in the cultivation of cereals, potatoes, fruits like apples and pears, and various vegetables such as asparagus, cabbage, celeriac, red beets and carrots. The fungicide is far from harmless. It is already classified as a Candidate for Substitution, the category of pesticides that is branded by the EU as too problematic to be used and need to be substituted by less toxic products. But none of these problematic substances have been substituted so far.

An Endocrine disruptor: disturbing the hormonal system

Difenoconazole is also an endocrine disruptor. The producers prefer to hide this important element, but it is officially recognised already since 2014. There is overwhelming evidence in public literature about its hormone-disrupting activity and harmful endocrine-related effects. According to Article 4.1 of the European Pesticide Regulation if this type of hazard criteria is met, the authorisation of the substance should not be renewed. (1)

But so far such a decision has not been adopted and the harmful substance remains on the market. The deadline for the assessment of the difenoconazole was December 2018 and with the help of five prolongations, it has now been extended to December 2026. It means that people are being exposed unnecessarily for many years. Nobody knows how many pregnant women, babies or children suffer from damage to their reproductive system or development because of this negligence. The impacts on the life cycle of environmental species must be devastating too.

Not only the active substance itself is a huge problem. The transformation product (metabolite) 1,2,4-T of difenoconazole is also harmful to reproduction to such an extent that under the Regulation, the product’s authorisation should be refused or revoked. Instead, the pesticide is authorised for open cultivation. Contact by drift, dust or via food is therefore unavoidable.

Pesticide promotes drug-resistance of a potentially deadly fungus infection

Not only does difenoconazole disturb the function of the hormonal system, but there is another danger of a very different kind. The fungicide belongs to a group of substances - the azoles - that are important medicines in the treatment of candida infections and overall fungal infections, including of the lungs. Doctors are concerned about the spreading of a ‘super fungus’, resistant to these medicines (Aspergillus fumigatus and several Candida species). For that reason alone it would be very wise to ban all uses of conazole pesticides. This is recognised by the authorities in The Netherlands, who voted against the prolongation of difenoconazole’ approval period in 2020 because of this problem. However, the majority of EU Countries voted in favour of this prolongation, so it is still widely used, including in the Netherlands.

Pestgate

Europe’s pesticide authorisation system is very problematic. There is not enough control and far too many authorisations of harmful pesticides. As a result, both health and the environment remain unprotected, despite such a protection being enshrined in EU law. The law itself is clear, but its practice is compromised. Guidelines are written or highly influenced by the pesticide industry. This allows authorities to exclude or undervalue most independent scientific research, neglect reported dangers and use many loopholes to continue the use of harmful and therefore dangerous pesticides. We have dubbed it ‘Pestgate’: a toxic interaction between the chemical industry and national and European authorities, resulting in a system that fails to protect our health and nature from very toxic pesticides. Over the years our reports and many examples have shown that dangerous pesticide products are:

allowed on the market based on producers’ own studies pretending they are safe
left on the market even after there is solid evidence about their risk or harm
left on the market because authorities are very slow in looking into this evidence
left on the market even longer while there is a discussion on these adverse effects
left on the market even after they are finally banned with the use of derogations

In 2019 the all-party PEST committee of the European Parliament thoroughly researched the pesticide authorisation. They found many gaps and flaws and came up with over 100 recommendations to improve the authorization system. In 2023 only 15% of these recommendations had been followed up. With the latest U-turns in political developments to abolish pesticide reduction this number is now ever lower. In June 2023 we reminded the European Commission and once again urged them to take the necessary action to improve the pesticide authorisation system, and the protection from harmful pesticides. However they chose not to do so, continuing instead with their ‘toxic’ business as usual. Read more in ‘Pestgate: why the EU pesticide control does not work the way it should’ in the link below the article.

EU Court of Justice: Pesticide authorisation by national authorities is wrong

For many years, we have challenged the lack of protection of health and environment. We do this not only through publications and demands to political bodies but also through legal actions in court. In two recent groundbreaking rulings, the European Court of Justice answered prejudicial questions from the Dutch court in PAN Europe cases against the authorisation of the products Closer (sulfoxaflor), Dagonis (difenoconazole) and Pitcher (fludioxonil). The highest EU Court reiterated that national authorities should include the latest technical and scientific knowledge in their decisions. The policy of the Dutch pesticide authority Ctgb (and all other national pesticide authorities) to use decades-old guidelines and ignore recent scientific studies that demonstrate the endocrine-disrupting effects of pesticides, contradicts EU law. The Court concluded that the authorisation bodies should apply the relevant information and use the precautionary principle to ensure the legally required high level of protection for humans and the environment.

This clear ruling will oblige pesticide authorities across all EU Member States to adopt much more thorough scrutiny of the dangers posed by pesticides. In turn, this should result in a ban on many harmful pesticides that are at the moment still in use.

The difenoconazole example: putting an end to harm the most vulnerable?

The court ruling is a very clear message to health authorities and institutions both on the EU and the national level. To ensure it is clearly understood we have now requested the European Commission to swiftly propose a ban on difenoconazole. Our member PAN Netherlands has asked for a swift ban on all 26 pesticide products used in the Netherlands that contain this very toxic substance. We are looking forward to the reply on this important issue. The only reasonable answer should be a swift removal of difenoconazole and all products that contain it, because of the harm it inflicts to health and nature. Declining our requests could be interpreted as wilful infliction of grievous bodily harm, especially to the most vulnerable of our population.

Notes:

(1) Regulation No 1107/2009, chapter 2, article 4: The assessment of the active substance shall first establish whether the approval criteria set out in points 3.6.2 to 3.6.4 and 3.7 of Annex II are satisfied. If these criteria are satisfied the assessment shall continue to establish whether the other approval criteria set out in points 2 and 3 of Annex II are satisfied.