Is the Dutch pesticide authority CTGB allowed to disclose information on secret pesticide co-formulants to PAN Europe? That is the gist of the hearing taking place today in the Netherlands as a result of our Access to Document request. The CTGB concluded that the law obliges them to disclose the documents, but the pesticide industry objected. They asked the court to block disclosure. Similar discussions take place in Germany. Spain objected to our request. We think farmers, institutions, independent scientists, NGOs and the general public have the right to know what chemicals are intentionally sprayed on our food and into the environment. The pesticide industry tries to guard their secrets. Why?
There is a lot of secrecy about co-formulants in pesticides. Many of them are very toxic to humans and some even have a pesticidal activity but are not disclosed as a pesticide to avoid additional testing. Producers do not disclose information to users and the public. According to EU Pesticide Regulation 1107/2009, the European Commission is supposed to regulate co-formulants. Just as for active substances, they shall have “no harmful effect on human and animal health and no unacceptable effect on the environment”. However, no proper regulation is in place yet. To find out more about these secret ingredients, PAN Europe has submitted Access to Documents requests in several EU countries.
Martin Dermine, executive director of PAN Europe, says: “It is not the active ingredient alone that makes a pesticide. Co-formulants can enhance the toxic effect or be very toxic by themselves. We all have the right to know what is in there. Farmers spray it on their fields and on our food, the rural population is exposed to these substances and we eat co-formulant residues.”
The hearing at the Dutch Board for the Authorisation of Plant Protection Products and Biocides (Ctgb) is the result of the request we filed in The Netherlands. In Germany, we face a similar situation, with the pesticide industry objecting to disclosure of information. In Belgium and Sweden, we did receive some relevant information. In Spain, it is public authorities themselves that refused. We filed an appeal and received a negative decision from the General Technical Secretary of the Spanish Ministry of Agriculture. Our member Ecologistas en Accion now took the matter to the administrative court.
The request in the Netherlands
In July 2023, PAN Europe sent an Access to Documents request [1], jointly with PAN Netherlands. We requested access to documents regarding the ingredients (co-formulants, safeners, synergists) used in a list of 13 pesticide products, containing 5 different active substances. We also requested access to any exchange of information between the national authority and the industry for these plant protection products, regarding the toxicity or toxicological profile of their co-formulants, safeners or synergists. EU law and case law are clear that this information has to be disclosed. [2]
In August 2023, we were informed that our request had been forwarded to the CTGB, as they were the ones in possession of the documents to which we sought access. We learned that their internal process was the following:
- determining which documents fall under our request and retrieving them from the relevant dossiers.
- consult third parties (producers) on the disclosure
- issue a decision, taking into account the opinion of third parties
The CTGB decision to publish the information
On February 26th, 2024, we received the CTGBs' official decision [3]. They agree that the information requested is both environmental information and information on emissions into the environment. They grant us access to the documents identified as falling under the scope of our request, but some with only partial access (blacking out some parts), to protect commercially sensitive data such as the production process, production methods and links between producers. In its decision, CTGB indicates that it deviates from the views of the pesticide companies and will disclose more information (documents less blacked out) than they agreed to "because in many cases it has not been made sufficiently plausible why the interests of the authorisation holders would be seriously harmed" by the disclosure of the information. We do not know what the companies specifically objected to, the decision does not go into details. The decision indicated that the documents would be published on the Ctgb's website in anonymised form two weeks after the decision, allowing third parties to prevent the disclosure by objecting and applying to the Court for injunctive relief.
Objection by Bayer and other pesticide producers
After the deadline had passed and the documents had not been disclosed, we asked why that was the case. The CTGB informed us that the disclosure of all documents had been blocked because an objection had been filed by several pesticide companies. They also requested preliminary relief from the court to halt the publication of the information.
The Ctgb agreed not to publish the information until after a decision on the objections, so the court asked the parties who had requested preliminary relief to withdraw their requests. All parties complied. Now the publication of the documents is postponed until a decision on the objection is made.
PAN Europe & PAN Netherlands were informed about and invited to take part in the hearing of the Advisory Committee on Objections. A representative of Bayer will speak on behalf of the other pesticide producers. The hearing will take place in two parts, one with everyone present and then possibly a closed hearing, with the CTGB Advisory Committee on objections and pesticide firms one-on-one, so they can explain why the information is confidential or commercially sensitive and should not be disclosed.
We have been contacted by the lawyer of several pesticide companies, who have offered to send us the documents CTGB wants to disclose with more parts blacked out if we considered withdrawing our request for obtaining the documents relating to their products. We reviewed the offered documents, but they did not contain the information we requested, so we uphold our request for full disclosure that is important for health and the environment.
Pesticide industry objections in Germany
In a parallel procedure, in Germany, the industry also objected to the delivery of the ingredients of their pesticides. Similarly, the process is stalled and industry's lawyers also write to us. They pretend they will send us what we asked for, but in the end they share meaningless information or try to make us sign non-disclosure agreements, hence preventing any communication on the toxicity of co-formulants they are using.
Conclusion
Through its action, PAN Europe is investigating the black box that co-formulants represent. Thousands of different co-formulants are used in Europe. They are sprayed in the environment and contaminate our food, as well as people's homes and the environment. Many of them are known to be carcinogens, toxic to reproduction or endocrine disruptors. Yet, co-formulants remain under the radar of regulatory agencies. The scientific evaluation of the toxicity of these products is very limited, despite their intrinsic toxicological properties. By providing more transparency on the ingredients of pesticides, PAN Europe aims at shedding light on the risks posed by these components and the lack of protection given to citizens and the environment.
Notes:
[1] PAN Europe’s ATD request to the Netherlands
[2] Emissions into the environment, established in Article 4(2) of the Directive 2003/4/EC and the definition of which has been clarified in the European case law (C-673/13 P and C-442/14). The right of access to information on emissions into the environment is wider than simple information on the environment. Invoking commercial and industrial confidentiality can not automatically preclude the disclosure of information on emissions into the environment. (Directive 2003/4/EC, Article 4, §2); C-442/14, §99).
