“The Label Is The Law”… Right?

DR. RIC BESSIN

LEXINGTON, KENTUCKY

Every pesticide label includes the following statement in the Directions for Use section: “It is a violation of federal law to use this product in a manner inconsistent with its labeling.” This language obliges purchasers or users of any pesticide to assume all legal responsibilities for the product’s use. Further, courts and regulators have recognized that pesticide labels are binding legal contracts that require those using the products to do so exactly as directed. Terms such as “must,” “shall,” “do not,” and “shall not” are mandatory statements, and users are responsible for specific actions when applying or handling a given product; any departure from such directions is, in the eyes of the law, an illegal use of the pesticide. Other statements such as “should,” “can,” and “including” are advisory and not mandatory.

However, many, if not most, pesticide labels also direct applicators to other websites or even the Congressional Federal Register for additional requirements. Because these are referenced from the label, applicators are required to follow them. Here are some of the newer requirements.

Worker Protection Standards

The Worker Protection Standards (WPS) are not new and deal with pesticides used on farms, forests, nurseries, and greenhouses. WPS is to help protect farm workers from both acute and chronic toxicities due to pesticide exposure. The WPS box on the label refers to 40 CFR Part 170, which specifies the requirements the applicators and establishment owners must follow to be in compliance. This includes requirements such as accessibility to decontamination sites, application exclusions zones (AEZ), a central location where pesticide application and emergency information is posted, and annual worker WPS training.

Endangered Species Protection

The EPA, in consultation with the U.S. Fish and Wildlife Service, has begun the process of updating pesticide labels for compliance with the Endangered Species Act (ESA).  With the large volume of pesticide labels in excess of 15,000, it will take many years to complete this process.  There are updated labels that address endangered and threatened species and many of these direct applicators to the Bulletins Live! Two website. This website provides additional site-specific protections for endangered species and their critical habitats.  The website has applicators select the application site to determine if additional requirements exist for the specific products they intend to use. When directed by the label, applicators must visit the website within 6 months PRIOR to the application to determine if any additional restrictions exist for their site. The applicator would print a bulletin and follow requirements within the bulletin as an extension of the label. Shaded areas on the map are called Pesticide Use Limitation Areas (PULAs). Applications within shaded areas on the map will generate detailed bulletins with additional requirements to the label that must be followed by the applicator. Even if no bulletins are generated but the label required visiting the website, applicators should print the generated form as a record of compliance with the label.

Pesticide Runoff Mitigation

A few pesticide labels now direct applicators to an EPA Mitigation Measures website. The label will require a minimum number of points (1-9) to be achieved before the product can be used on the application site. Different products may have different minimum points scores that the applicator needs to achieve in order to use the specific product. Minimum point scores may vary based on soil types.  List of farming practices that can reduce runoff are assigned point scores and applicators pick the practices they are using to determine if they meet this minimum point requirement. The EPA has developed a Mitigation Measures App to assist applicators.

Ecological Spray Drift Mitigation & Buffer Reduction

Some product labels require applicators to use an in-field ecological spray drift buffer for application in order to avoid drift outside the field. Buffers may be required in the bulletins issued from Bulletins Live! Two. These required spray drift buffers can be omnidirectional or a wind direction specific buffer (downwind).  The EPA now has a tool to determine if buffer size reductions can be made. Pesticide applicators need to follow the steps with the Ecological Spray Drift Buffer Reduction Calculator to determine whether ecological drift buffer reduction options can be employed during the application. If your label does not allow for spray drift reductions or does not direct you to the mitigation menu website, you cannot use the drift reduction options.

Final Remarks

These websites provide applicators with added information about product use requirements.  Applicators must visit the websites when directed by the label to assess added requirements when using certain products with website references.   ∆

DR. RIC BESSIN

UNIVERSITY OF KENTUCKY