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Advertising and labelling of pesticides

Petition: No. 87

Issue(s): Human health/environmental health and pesticides

Petitioner(s): Earth Action

Date Received: 16 July 2003

Status: Completed

Summary: This petition concerns pesticide labelling and advertising. The petitioner alleges that certain pesticide manufacturers and lawn care companies are contravening the federal Pest Control Products Act by making claims that certain pesticides are "green" or offer environmental benefits. The petitioner asks Health Canada to investigate and indicate what it is doing to enforce federal pesticide legislation. 

Federal Departments Responsible for Reply: Health Canada

Petition

July 8, 2003

Johanne Gélinas
Commissioner of the Environment and Sustainable Development
Office of the Auditor General of Canada
240 Sparks Street
Ottawa, ON
K1A 0G6

Dear Johanne Gélinas,

Petition pursuant to Section 22 of the Auditor General Act
Enforcement of the Pest Control Products Act

Introduction

Earth Action is a non-profit environmental activist organization based in Prince Edward Island. We are opposed to all chemical pesticide use. In Canada's most densely populated province, industrial agriculture fields sprayed with highly toxic pesticides are located close to, and in many cases adjoining, residential properties, hotels, schools, hospitals, seniors' homes and day cares.

Current Legislation

The federal Pest Control Products Act (PCP Act) regulates environmental label claims and advertising of pest control products registered under the Pest Control Products Act. Subsection 4(2) of the PCP Act states that "No person shall package, label or advertise a control product in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety."

Regulatory Directive 96-02 (March 15, 1996) states that "Industry is responsible for ensuring that any environmental claims on their product labels or advertising are accurate and in compliance with the PCP Act. Environmental claims must be truthful and accurate, based on recognized standards, and, where, applicable, supported by scientifically defensible studies or rationale... Vague and potentially misleading statements such as "environmentally friendly", "green", or "ozone friendly" must not be used as that cannot clearly indicate a specific benefit. Comparative claims such as "best", "superior", or "greener" also must not be used. The terms "safe" or "safer" in the context of environmental claims (e.g., "environmentally safe or "safe for the environment") may be misinterpreted as relating to personal safety and, as such, may cause some confusion. For this reason, these terms are not acceptable on pest control products...A degradable product/material is one that breaks down so that the resulting materials can be easily assimilated into the environment without having any significant negative impact on the environment. A degradable claim must be qualified by a statement indicating, to the extent possible: the conditions under which degradation will occur; the degree of degradation over a defined period of time (e.g., "Photodegradable: will degrade 95 in 60 days when exposed to normal light conditions")"

Furthermore, Regulatory Directive 99-02 (March 4, 1999) states that "The PMRA views advertising contraventions as serious offences....Advertising must not contain words stating, implying or inferring that a control product is approved, accepted or recommended by the Government of Canada or by any of its departments or agencies."

Background

Pesticide Manufacturer Advertising

Pesticide manufacturers and lawn care companies routinely advertise products in contravention of the Pest Control Products Act.

Enclosed* are three advertisements and one press release from Bayer in which the following prohibited language and misleading statements are used to promote Admire, an insecticide used on potatoes:

  • Environmentally sound. Admire is a winner when it comes to the environment. (Full-page ad published in Island Farmer, page 9, March 26, 2003)

  • Independent research confirms Admire's safety. Steve Howatt, an independent researcher with Atlantic AgriTech in Prince Edward Island, says that Admire is "quite a safe product to use" in terms of human risk, and, "Admire is non-volatile, so there are no vapours or fumes" (8-page supplement ad included in Potatoes in Canada and Island Farmer in 1997. #720110197)

  • Before Admire received registration, Bayer Inc. went through a thorough approval process with the national Pest Management Regulatory process. Great pains were taken to ensure that it was not harmful to people or the environment. Independent research confirms Admire's safety, including the fact that because it is not volatile, Admire does not release vapours or fumes. It also binds very tightly to soil, preventing leaching into groundwater. On the other hand, Admire is light sensitive and will readily break down in sunlight. Since coming to market, Admire has proven itself in the field. You can use it with the confidence that it has been tested and proven safe. (6-page advertising brochure published in 1999)

  • This product is the direct result of Bayer's response to grower demand for new compounds that are safer for the environment and the user while providing effective control. (Bayer press release March 15, 1996)

Syngenta, another pesticide corporation, also uses prohibited language in a press release published in Island Farmer, page 4, March 26, 2003:

  • "Environmental friendliness and user safety are the key benefits of Fulfil," McCaughey said. The product is already registered in the U.S. and is one of a number of more environmentally friendly pesticides the country's potato industry has been urging the Pesticide Regulatory Agency to approve. (Note: "McCaughey" is Tara McCaughey, horticulture crop manager with Syngenta Crop management Canada.)

Lawn Care Company Advertising

Lawn Care companies also routinely contravene the Pest Control Products Act with their advertising. The following examples are enclosed.

From the Weed Man web site (www weed-man.com) there are many instances. Here are a few:

  • "What Do the Experts Say About 2,4-D? When applied by highly trained technicians, according to label directions it provides effective control of broadleaf weeds without posing a danger to humans, pets or the environment. In fact there is extensive research available to support the safety to the user, the bystander, pets and the environment."

  • "Do I have to worry about the products persisting in the environment? No, after the product is applied it is broken down quickly by soil microbes and other means into harmless substances..."

  • "Partnering with nature. Press release November 22, 2002. All registered Weed Man products are biodegradable..."

From a Weed Man ad in the Guardian (Charlottetown), June 2003, classified ads:

  • "Environmentally responsible, Government certified products"

From the Bobby Lawn Care web site (www.bobbylawn.com/chinch_bugs.htm)

  • We carefully and prudently use, as required, only products that have been approved and deemed safe by the government for the environment and people.

From a guest opinion piece in the Guardian (Charlottetown), April 21, 2003 by Robert Gallant, owner of Atlantic Graduate Lawn Care:

  • "The truth of the matter is that there is no scientific research to support or link pesticides to being carcinogenic..."

Government Representatives Endorsing Pesticide Products

Elected government officials and civil servants are in positions of trust, and are probably more trusted by the public than pesticide corporations or lawn care companies. Pesticide users and some members of the general public rely on these officials for information about human and environmental safety aspects of pesticide products. Yet, politicians and civil servants routinely endorse pesticide products using language and misleading statements that are prohibited in the PCP Act.

For example:

  • Don Reeves, manager of the PEI Pesticide Regulatory Program said in an interview that he "hasn't seen any concrete, scientific evidence that shows pesticides used on PEI pose any health hazard to Islanders". (Guardian, May 27, 2000)

  • PEI Minister of Agriculture Mitch Murphy said in an interview "...the fumigants are safe... if they weren't they wouldn't be registered by Health Canada." (Guardian, April 27, 2003) The fumigants in question were banned by the PEI Minister of Environment later that year. (article enclosed)*

  • Federal Health Minister Anne MacLellan said, in reference to pesticide products registered in the U.S. but not in Canada, "Farmers should have access to the safe and effective pest management tools used by their competitors." (Ontario Farmer, page 27, October 29, 2002. (article enclosed)*

Questions relating to advertising contrary to the Pest Control Products Act, and to endorsement of pesticide products by government officials.

Please direct our questions to the Minister of Health.

  1. Do the examples of advertising given in this petition contravene the PCP Act? If they do, what action will you take to reprimand the offenders? What action will you take to prevent future illegal advertising by pesticide and lawn care companies?

  2. We understand that there have been about 300 investigations into pesticide advertising as a result of complaints made to Health Canada since 2000 (Access to Information request by the Toronto Environmental Alliance). Some of the advertising examples we cite in our petition are several years old. Why does the federal government allow illegal advertising to continue, seemingly unchecked, when the PCP Act states you view advertising contraventions of the PCP Act as serious offences?

  3. The PCP Act defines advertising as: "...any representation by any means whatever for the purpose of promoting directly or indirectly the sale or other disposition of a control product?" Elected government officials and civil servants are endorsing pesticide products using language that is illegal, under the PCP Act, for use in advertising. Are these statements by these officials (examples listed above) considered advertising under the PCP Act? If not, this represents a loophole in the PCP Act in that willing government officials can act as agents/mouthpieces for specific pesticide products or for the pesticide industry in general. As the regulators and enforcers of pesticide legislation, government officials are in ethical conflict of interest when they publicly endorse or otherwise indicate approval of pesticide products using language prohibited in the PCP Act. Since government officials are more likely to be seen as trustworthy, compared to pesticide corporations, this is a serious problem. For the very same reasons pesticide manufacturers and lawn care companies are prohibited from using this kind of language - i.e., human health and the environment can be jeopardized - we recommend the PCP Act be amended, if it currently does not apply to government officials, to also make it illegal for those officials at the municipal, provincial and federal levels to make vague and misleading statements such as "safe", "safer", "environmentally friendly", "best", and "biodegradable". What action will you take in this regard?

For the Earth,

[Original signed by Sharon Labchuk]

Sharon Labchuk
Earth Action
Pesticide Campaigner

Earth Action, Breadalbane RR#2, PEI, COA 1E0

*[attachments not available]

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Minister's Response: Health Canada

4 December 2003

Ms. Sharon Labchuk
Earth Action
R.R. 2
Breadalbane, Prince Edward Island
C0A 1E0

Dear Ms. Labchuk:

I am writing in response to your petition of July 8, 2003, sent to the Office of the Auditor General and the Commissioner of the Environment and Sustainable Development. The petition was forwarded to Health Canada for consideration and to provide a response to a number of specific questions with regard to the enforcement of the Pest Control Products Act (PCPA), specifically with reference to advertising and the endorsement of registered pest control products.

Health Canada's Pest Management Regulatory Agency (PMRA), under the authority of the PCPA, regulates the sale and use of all pest control products, including the advertising of those products. PMRA officials have reviewed the petition and I would like to provide you with the following information to explain how advertising is regulated under the PCPA and what PMRA will do regarding the information that you have brought to our attention in your petition.

Legislative Framework for regulation of advertising pest control products

Under the authority of the PCPA, the word "advertise" includes any representation by any means whatever for the purpose of promoting directly or indirectly the sale or other disposition of a control product1. It is a violation to advertise a pesticide in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, or merit2. Pesticides can only be offered for sale if they bear a registered label.

It is a violation to sell, distribute or promote a pesticide product in a manner that is inconsistent with the registered label. Furthermore, the PCPA prohibits the advertising or promoting of unregistered products.

Finally, section 51 (c) of the PCP Regulations prohibits, without the Minister's authorization, the use of words in any advertisement stating, implying or inferring that a control product is approved, accepted or recommended by the Government of Canada.

Application of legislation

The term "advertise" includes any representation for the purpose of promoting directly or indirectly the sale or other disposition of a pest control product. In the context of the PCPA and its regulations the term is limited to representations that have a clear commercial purpose in relation to a product. It is important to note that many articles or Web sites provide general information (e.g., on alternatives to conventional pesticides). This information would not be regulated under the PCPA since the Act does not apply to statements that are unconnected to promoting the sale of a pesticide product. The sharing of information, the giving of advice and the providing of opinions in Canada, is governed by the laws regarding freedom of expression. The PMRA does not regulate, nor does it have the authority, to curb or prevent such activities, other than in the context of "advertising". To be considered advertising under the PCPA, the material should contain a reference to a product or products and be intended to promote the sale of that product. Newspaper articles quoting lawn care company operators and fact sheets from industry associations on pesticide regulation cannot be considered advertising as such.

Information appearing on company Web sites exists to promote their products and services. However, the information appearing on each webpage has to be reviewed in context. For example, a number of the lawn care companies have a webpage explaining the pesticide registration system. The intention is to provide information, not to promote sale of a product. Although this kind of webpage is not considered advertising, the information should be accurate and not understate the risk associated with the use of pesticides. In addition, registrants or lawn care companies are advised against using the word "safe" in their product advertising. Regulatory Directive 96-02 "Environmental Label Claims and Advertising of Pest Control Products" outlines this position. Calling a product "safe" could be considered to be misleading, given that most products have precautions on the label to mitigate the risk.

RESPONSE TO QUESTIONS IN THE PETITION

Your letter included a copy of three advertisements and two press releases; six statements from lawn care companies found in Web sites or ads in local newspapers; and three quotes from government officials. In addition, the petition raised six questions relating to advertising contrary to the PCPA, and to the endorsement of pest control products by government officials. The questions raised in your petition and Health Canada's responses to each of these questions are provided in Appendix I.

Thank you for your interest in this matter and I hope that this response will address your questions.

Yours sincerely,

[Original signed by A. Anne McLellan, Minister of Health]

A. Anne McLellan



APPENDIX I

Question 1a):

Do the examples of advertising given in this petition contravene the PCP Act?

Response to Question 1a):

PMRA regional officers in Atlantic Canada are reviewing the information received with this petition and are in the process of investigating suspected contraventions of the PCPA and regulations. In each case, it will first be determined if the material fits the legal definition of 'advertising', i.e., promotion for sale of a control product and secondly, whether the advertising material appeared to be in violation of either subsection 4(2) of the Act or paragraph 51c) of the regulations. Investigations are nearing completion.

Question 1b):

If they do, what action will you take to reprimand the offenders?

Response to Question 1b):

The approach on enforcement is outlined in the PMRA's Compliance and Enforcement Policy Guideline (B98-01). A copy is enclosed,* and also can be found on PMRA's website using the following link: http://www.hc-sc.gc.ca/pmra-arla/english/pdf/bgr/bgr_b9801-e.pdf. If a product is advertised and it has been determined that the advertising contravenes subsection 4(2) of the Act or paragraph 51c) of the regulations, appropriate action will be taken. Considering the evidence, the willingness of the violator to take corrective actions, and the extent of harm incurred, enforcement actions could include: education, the issuing of a notice of violation, with or without penalty, under the Agriculture and Agri-Food Administrative Monetary Penalties Act (AMPs Act), or prosecution. The nature and strength of an enforcement response will vary depending on the evidence and circumstances of a particular violation.

Question 1c):

What action will you take to prevent future illegal advertising by pesticide and lawn care companies?

Response to Question 1c):

In general, the PMRA promotes, verifies, maintains and enforces compliance with the PCPA through consultations, inspections and investigations. When the situation warrants and an infraction or violation of the PCP Regulations is detected, the PMRA has a range of enforcement response tools that may be applied. Such measures are designed and intended, among other things, to discourage future contraventions. While the current and new PCPA provides authority to take action against registrations of those who contravene the Act or regulations, as a preventative measure, the PMRA has published guidance documents including:

  • Regulatory Directive 96-02 "Environmental Label Claims and Advertising of Pest Control Products" which informs registrants and other applicable parties about the regulatory position regarding advertising claims on products regulated under the PCPA. This document is available on PMRA's website at: http://www.hc-sc.gc.ca/pmra-arla/english/pdf/dir/dir9602-e.pdf; and,

  • Regulatory Directive 99-02 "Advertising Pest Control Products" which informs registrants, other interested parties and agencies about the legislation and policy on the advertising of pest control products, and provides some guidelines on wording in promotional material and timing of advertising of control products. This document is also available on PMRA's website at: http://www.hc-sc.gc.ca/pmra-arla/english/pdf/dir/dir9902-e.pdf.

In addition, the PMRA will continue to update and publish guidance documents, as needed, in order to provide accurate information regarding the advertising of pest control products.

Question 2:

We understand that there have been about 300 investigations into pesticide advertising as a result of complaints made to Health Canada since 2000 (Access to Information request by the Toronto Environmental Alliance). Some of the advertising examples we cite in our petition are several years old. Why does the federal government allow illegal advertising to continue, seemingly unchecked, when the PCPA states you view advertising contraventions of the PCPA as serious offences?

Response to Question 2:

The PMRA does not allow illegal advertising to continue. PMRA officials investigate all suspected contraventions of the PCPA, including any possible advertising contraventions when we become aware of them. As indicated in the response to questions 1, PMRA officers are reviewing the information cited in the petition and are in the process of investigating all cases that appear to be possible contraventions of the PCPA and regulations. Investigations have the highest priority of all pesticide compliance work.

In addition, the PMRA conducts inspection programs annually that target registrants, distributors, and users. At times, these inspections include a component to verify that advertising is in compliance with the PCPA and Regulations. Although, the majority of the PMRA's compliance activity with regards to false, misleading or deceptive advertising; control products not advertised as prescribed; advertising contrary to regulations; and advertising of unregistered products occurs as part of an investigation of a violation/potential violation of the PCPA.

Question 3a):

The PCP Act defines advertising as: "... any representation by any means whatever for the purpose of promoting directly or indirectly the sale or other disposition of a control product..." Elected government officials and civil servants are endorsing pesticide products using language that is illegal, under the PCPA, for use in advertising. Are these statements by these officials considered advertising under the PCPA?

Response to Question 3a):

The sense in which "advertise" is used in the PCPA and regulations is limited to representations that have a clear commercial purpose in relation to the pest control product in question.

Opinions or commentaries of the types you have cited that are not designed or intended to promote such a purpose are not considered contraventions of the PCPA.

Question 3b):

If not, this represents a loophole in the PCP Act in that willing government officials can act as agents/mouthpieces for specific pesticide products or for the pesticide industry in general. As the regulators and enforcers of pesticide legislation, government officials are in ethical conflict of interest when they publicly endorse or otherwise indicate approval of pesticide products using language prohibited in the PCP Act. Since government officials are more likely to be seen as trustworthy, compared to pesticide corporations, this is a serious problem. For the very same reasons pesticide manufacturers and lawn care companies are prohibited from using this kind of language—i.e., human health and the environment can be jeopardized—we recommend the PCP Act be amended, if it currently does not apply to government officials, to also make it illegal for those officials at the municipal, provincial, and federal levels to make vague and misleading statements such as 'safe', or 'safer', 'environmentally friendly', 'best', and 'biodegradable'. What action will you take in this regard?

Response to Question 3b):

This petition does not offer adequate evidence to establish or reasonably suggest that sufficient justification exists to curb Canadians' freedom of expression. Clear justification would have to be firmly established in order to take the type of legislative action the petition recommends.

*[attachment not posted]


690 University Avenue
Charlottetown, PE
C1E 1E3

December 16, 2003

Ms. Sharon Labchuk
Earth Action
R. R. #2
Breadalbane, PE
C0A 1E0

Re: Health Canada's Response to Environmental Petition no. 87

I am writing to inform you of the outcome of the Pest Management Regulatory Agency's (PMRA) investigation into the advertising allegations you raised in your petition of July 8, 2003 to the Office of the Auditor General and the Commissioner of the Environment and Sustainable Development.

In each case, it was first determined that the material fit the definition of "advertising", i.e. promotion related to sale of a control product and secondly, that the advertising material appeared to be in violation of either section 4 (2) of the Pest Control Products Act (PCPA) or section 51 (c) of Pest Control Products Regulations.

As was provided to you in recent correspondence (December 4, 2003) from the Minister of Health Canada, opinions or commentaries cited in your petition that are not designed or intended to promote or advertise a control product for a clear commercial purpose are not considered contraventions of the PCPA.

Review of the information you provided resulted in five separate investigations being conducted. The PMRA has determined the following contraventions of the Pest Control Products Act and Regulations:

Pesticide Manufacturer Advertising

1.

Bayer Crop Sciences Inc.—contrary to sections 4(2) and 51(c)

2.

Syngenta Crop Protection Canada Inc.—contrary to sections 4(2) and 51(c)

Lawn Care Company Advertising

3.

Weed Man Ontario web site—contrary to section 4(2)

4.

Weed Man ad Charlottetown—contrary to sections 4(2) and 51(c)

5.

Bobby Lawn Care Ontario web site—contrary to sections 4(2) and 51(c)

The PMRA has issued an enforcement response to each of the above companies. The companies have been ordered to initiate corrective action and to take steps to achieve compliance with the Pest Control Products Act and Regulations. The PMRA will monitor the delivery and completion of corrective action plans.

Please contact me if you have any questions at ph. # (902) 566-7201, facsimile (902) 566-7334, or electronic mail WalmsleyD@inspection.gc.ca.

Yours truly,

[Original signed by Diane J. Walmsley]

Diane J. Walmsley
Regional Pesticides Officer