Paraquat: an irrational and damaging decision by the European court
In February 2004, the Swedish government, supported by Denmark, Finland and Austria, brought a case against the European Commission, seeking annulment of paraquat's inclusion in Annex 1 of the pesticides directive
In July, the Court of First Instance ruled in their favour see press release: curia.europa.eu/en/actu/communiques/cp07/aff/cp070045en.pdf The Commission had until 27th September to lodge an appeal against this decision, but chose not to do so. The result is that use of paraquat is currently being phased out in Europe.
Both the background to the case and the ruling itself seem extraordinary. In essence, this is a case of a country which has no need for paraquat arguing on the flimsiest of evidence that farmers in other countries should not have the choice of whether or not to use it. The result is a judicial decision which seems to defy reason and is compounded by the defendant apparently concurring with the views of the court. It is yet another chapter in what seems to an outside observer to be a politically motivated campaign to ban paraquat globally.
That Sweden took the lead in this case is not surprising, since this is the country which has led initiatives to achieve a "non-toxic environment". Underlying this, is the assumption that "natural" is good and that "chemicals" (for which read "Manmade chemicals") are bad, an amazingly naïve attitude to a reality where some of the most toxic substances known occur naturally (botulinum toxin, for example) and no account is taken of the balance of risk and benefit.
All synthetic chemicals are under suspicion, and any whiff of potential risk is enough to condemn them in the eyes of the zealots, no matter what their benefits. Significantly, though, the same black-and-white standards do not apply where Sweden's own economic interests might be threatened: the use of wood preservation chemicals, for example, is not being questioned.
Activists have campaigned for pesticides to be banned for many years, and paraquat has to some extent become their poster child. The legal decision in the EU will doubtless be used to pressure governments in other regions to introduce similar bans, showing no regard for the product's benefits under local conditions. Before looking at the shaky basis for the decision by the Court of First Instance, we should consider some facts about paraquat and its use.
Paraquat is one of the oldest-established herbicides on the market, having been sold for over 40 years and is currently marketed in about 120 countries. Such longevity and widespread use has not come about by chance; it is because the product has some uniquely useful properties, see www.paraquat.com. Farmers are not forced to buy it; they choose to because of its usefulness. This is the benefit side of the equation which campaigners simply ignore.
The argument put forward by these campaigners is that paraquat is dangerous to use. True, it has a relatively high acute toxicity but, to put that in perspective, only to the same degree as caffeine. And for that toxicity to be translated into harm, paraquat must be swallowed. Using it with quite simple precautions means that it can be used with complete safety. In practice, it is widely used on a daily basis with no evidence of harm. It is similarly safe environmentally, being tightly bound to soil particles and easily degraded by soil micro-organisms if released.
The case brought by Sweden, Denmark, Finland and Austria is clearly politically motivated, as paraquat is not used in these countries. It is notable that the 13 European states whose farmers do use paraquat did not support the court case. The UK, as rapporteur Member State for the original application to include paraquat in Annex 1, reviewed all the evidence and supported the inclusion. It has not changed its opinion: the UK government is not associated with the Swedish initiative.
As for the judgement itself, this was made on narrow legal points, the court essentially finding that the applicant had failed to refer explicitly to certain studies which may cast doubt on the safety of paraquat. In other words, the applicant – Zeneca initially, later Syngenta – was judged not have followed proper procedure. However, this was surprising considering the contradictory evidence presented by the Commission, and to a layman this looks to be ample grounds for appeal. The court also took on the role of technical as well as legal experts by overruling scientific expert judgement on the results of several studies.
One reason given for the judgement was the failure of the Commission to refer to studies which suggested possible links between paraquat and Parkinson's disease. There is actually evidence from Commission minutes that all Member States were aware of these studies, which makes the court's judgement questionable and the lack of an appeal by the Commission all the more surprising.
So, is this just a legal nicety, or is there some real evidence that paraquat is a cause of Parkinson's? Studies suggest that there is at best a tenuous link between exposure and the onset of Parkinson's, and no causal link has ever been proved, despite studies by a number of groups. Animal studies have only shown a possible effect when massive quantities of the chemical are injected into newborn mice selected to be susceptible to Parkinson's. This is the equivalent of force-feeding them sodium chloride and concluding that table salt should be banned.
Studies on people have produced no evidence of paraquat causing Parkinson's or, indeed, being a neurotoxin at all. The Hertzman study (Hertzman et al. A case control study of Parkinson's disease in a horticultural region of British Columbia. Mov Disord, 9(1):69-75, 1994) looked for risk factors by questioning people retrospectively about their work and behaviour. The particular factors identified were working in orchards (with paraquat being used in some instances) or timber mills, and there is no indication whatsoever that paraquat lies behind any increased risk.
A survey of epidemiological studies for the UK Advisory Committee on Pesticides in 2001 concluded there was no causative link, and the 2003 EU regulatory review also agreed that paraquat was not a neurotoxin (although, in the court's view, this was invalidated by the fact that some studies were not explicitly referred to). Despite this, the unconvincing reported "links" continue to be referred to, giving ammunition to anti-pesticide activists to cast doubt on the safe use of paraquat.
Other points related to safety were raised in the case. For example, it was alleged that there are doubts as to the safety of paraquat in use, based on a single study conducted in Guatemala. This study looked at different compound – diquat – and found that one operator was exposed to slightly higher levels than recommended.
This was taken to mean that paraquat exposure levels would also be above the recommended limit and that it would therefore not be safe to use. In fact, the Acceptable Operator Exposure Limit is set very conservatively, with several safety factors built in. Exceeding it does not mean that there is a safety issue, merely that best practice was not being followed. Experience over many years confirms that paraquat is perfectly safe to use if simple precautions are taken, and a similar observation study in Spain showed that exposure of operators was within the agreed limit.
The court also, rather surprisingly, questioned the use of only two crop studies to assess the safety of paraquat to animals and birds, although 14 uses were applied for. This displays an unfortunate ignorance of both farming practice and risk assessment, since the two studies submitted – covering stubbles and alfalfa – addressed the two worst case scenarios. Although regulation overall is becoming more stringent with time, the Commission is actually moving to a situation where data on only one representative crop is needed. In this case, it seems surprising that the court chose to move beyond its usual range of competence and make judgements on matters of scientific risk assessment.
This highlights an important issue regarding the way the court has handled the case, by moving into areas where a degree of scientific expertise is needed. This is a departure from normal practice, compounded by the decision not to leave the onus for the annulment to the Commission, but to implement it immediately. It is difficult to see why the court should have chosen to move beyond its normal areas of competence and ways of operating.
On these rather dubious technicalities, a judgement has been made which annuls the legal basis for the registration of a useful crop protection chemical. On the advice of the Commission, a number of Member States have already revoked or suspended national registrations, and others are sure to follow.
What are the consequences of this controversial decision? There are a number, and none offers any benefits other than to the campaigners. Safety of spray operators will not be improved. Simple and commonsense precautions are sufficient for protection, and harm can only come from deliberate ingestion. The environment will not benefit, in fact there would be negative consequences as alternative systemic herbicides will kill the root system of weeds and increase the risk of soil erosion. Farmers will lose a control mechanism of choice from their already depleted set of options.
European farmers will undoubtedly cope, albeit at a cost. However, if the European decision proves to catalyse similar actions in developing countries, it will not just be plantation owners who lose, but also tens of thousands of small-scale farmers. Campaigners will not be thanked for helping to remove an affordable and important means of weed control from people whose lives are quite hard enough already.
But there are also broader consequences. The CFI judgement can be seen as a victory for those who promote the precautionary principle. The intentions of the principle are good – to reduce risk – but the consequences of blanket use are pernicious. It is open to a range of interpretation, takes no account of benefits, and provides no rational basis for decision-making. It is a textbook example of the path to Hell being paved with good intentions.
The most serious problem in the present case is that the apparent overturning, by narrow legal arguments over procedure, of a decision made on the advice of independent experts and based on sound scientific risk assessment will continue to undermine both the role of scientific evidence in European decision making and the general public's confidence in the scientific method. And the motivation for this comes from politicians who are more deeply wedded to the precautionary principle than to the principles of science, which does not bode well for future regulation.
There is no reason why manufacturers of paraquat should not apply once more for inclusion in Annex 1. If they do so, there is absolutely no basis to believe that scientific experts would find any reason to change their minds and oppose this inclusion. The result would then be that, after an expensive delay, the product would once again be back on the market. The anti-chemicals lobby may still choose to regard this as a victory of sorts, but farmers round the world would beg to differ.
Martin Livermore
Martin Livermore is a freelance consultant and commentator who has worked in the food and agriculture sector for many years.
