EPA puts onus on pesticide makers to prove safety for use on pot

A federal law that permits pesticides to be used on crops threatened by an outbreak or infestation could be the solution for marijuana growers struggling with restrictions on the chemicals they can use.

But critics on both sides wonder whether it will be a boon for the pesticide and marijuana industries or a bust because of the many hurdles impeding success.

State and federal regulators are poised to give pesticide manufacturers specialized approval for their products to be used on marijuana as long as the companies can prove the chemicals are not harmful to consumers when ingested.

The move is the first time the U.S. Environmental Protection Agency, which regulates pesticide use, has offered any help on how pesticides could be legally used on marijuana, a crop that is illegal under federal law and for which no pesticide can be specifically approved.

“Special local need”

Under a registration program called 24(c), pesticide manufacturers can apply for a “special local need” exemption, allowing the chemical to be applied to marijuana crops in Colorado.

It was an idea the state first suggested in late 2012, according to documents reviewed by The Denver Post, but it took until early 2015 before it garnered any interest within the EPA.

“Just having a potential option is a huge step forward,” Mitchell Yergert, director of the Colorado Department of Agriculture’s division of plant industry, wrote in an e-mail to the EPA. “That the EPA is even at the table is tremendous.”

Marijuana growers are skeptical the rule would offer quick solutions.

“I wouldn’t say I had high hopes for it,” said Josh Malman, grow operations manager at The Clinic in Denver. “I talked with some chemical manufacturers at a trade show recently, and I heard from some who wouldn’t work with the industry. I don’t see it as being a quick remedy to the situation.”

Industry representatives said they were also “cautiously optimistic.”

“We don’t know if the 24(c) process will solve this problem. Until there is action at the federal level, the 24(c) process appears to be the only avenue available to us,” said Michael Elliott, executive director of the Marijuana Industry Group. “So we’re cautiously optimistic that manufacturers will want to work through the process and that growers will eventually have additional tools that help them provide a safe, high-quality product to their customers.”

CDA officials tried unsuccessfully to get any guidance from EPA on how to handle the issue of pesticides on marijuana when legal recreational sales began in January 2014.

The back-and-forth between CDA and EPA over the past three years resulted in a mixed bag of proposed regulations for which pesticides could be allowed to grow cannabis.

CDA initially hoped to limit permissible pesticides to the most nontoxic, those that don’t even require federal registration. But industry pressure to use more effective pesticides pushed that back and the state eventually allowed an array of chemicals whose warning labels were so broadly worded that using them on marijuana would not be a violation.

In May — months after Denver health officials quarantined more than 100,000 marijuana plants treated with pesticides not approved by the CDA — the EPA offered a letter outlining the possibility that the exemption program might actually work, but did not guarantee its success.

Any company wanting an exemption would have to prove the product’s safety on marijuana.

In late September, CDA devised a new approach, one that, as before, would limit the allowable pesticides for marijuana to the least toxic and those permitted for use on tobacco, but also gave the industry an opening through the 24(c) exemption by allowing it to prove other chemicals are safe to use.

The rule-making process is expected to last through January, CDA officials estimate.

A passive process

Currently the state allows more than 200 pesticides on marijuana, but the new rules, if approved, would pare it to about 75 before any exemptions are added.

EPA approval of a 24(c) application is a passive process. CDA would make the initial approval, then pass the application on to the EPA, which would either deny it or do nothing.

The 24(c) exemption was designed for situations of “an existing or imminent pest problem” where a pesticide registered with the EPA is not sufficiently available where the problem arises, according to the agency.

For example, a special local need registration might allow for a pesticide to be used on soy beans when it is only registered for use on corn, or to be used in an outbreak of a pest unique to a local crop and for which nothing else is available to combat the problem.

By showing that a pest cannot be adequately controlled and that unacceptable levels of damage would result without approval, the number of chemicals available to the marijuana industry could increase significantly.

Any application, however, must also show a pesticide is already allowed on food products and tobacco, and allowed on crops with similar characteristics as cannabis.

Persuading the pesticide industry to participate might be a hard sell.

“The cannabis market is a difficult market to enter because there are so many regulators and people who are afraid of that process — or being discovered in that process,” said Mike Hughes of Pure Ag, a small agriculture company whose product was recently approved for use on marijuana in Colorado.

“I hate to tell you, but you guys are a minor market,” Sandra McDonald of Mountain West Pest told industry stakeholders at a meeting in late 2014. “You’re not soy, cotton, soybeans, tobacco, rice or corn — the major six.”

No company has yet changed a label to bar a pesticide’s use on marijuana, CDA officials confirmed for The Post.

David Migoya: 303-954-1506, dmigoya@denverpost.com or @davidmigoya
Ricardo Baca: 303-954-1394, rbaca@denverpost.com or twitter.com/bruvs

This story was first published on DenverPost.com