On June 22, 2017, the US Environmental Protection Agency (EPA) rejected California’s request for “special local needs” approvals for pesticides for use on cannabis. EPA Administrator Scott Pruitt based the decision on the “general illegality of cannabis cultivation.”
By way of background, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires the registration of all pesticide products for a specific use. Cannabis is a Schedule I controlled substance, illegal to grow, possess or distribute under federal law. As a result, EPA will not register any pesticide specifically for use on cannabis.
FIFRA allows states that have a unique pest management concern to issue Special Local Needs (SLN) authorizations where a federally registered pesticide product is approved for use(s) similar to the manner in which the SLN pesticide would be used. However, EPA may disapprove any SLN under 40 CFR 162.154 if the administrator finds that the proposed use is not similar to a federally approved use for the product.
On May 25, 2017, the California Department of Pesticide Regulation (CDPR) approved four SLNs for pesticide products to be used on cannabis. The SLNs were submitted to EPA for review under 40 CFR 162.154.
On June 22, EPA issued a “notice of intent to disapprove” the SLNs. In the notice, EPA cited the current status of cannabis under the CSA as a Schedule I substance: “Under federal law, cultivation (along with sale and use) of cannabis is generally unlawful as a Schedule I controlled substance under the Controlled Substances Act.” EPA noted that it “would not have been inclined to disapprove these registrations were cultivation and sale of marijuana generally lawful in the United States.”
CDPR had 10 days from receipt of the June 22 notice to consult with EPA and or withdraw the SLN requests. As of July 17, 2017, CDPR’s website showed these four products as “inactive” and the associated text reads “Inactivated because US EPA determined the SLN did not comply with Title 40 Code of Federal Regulations Section 162.151 defining similar use pattern.”
While the EPA denial is not a complete surprise given the current Administration’s statements about cannabis, it represents something of a reversal from prior EPA guidance. In 2015, EPA issued guidance to the Colorado Department of Agriculture in that reads “EPA strongly encourages a state to pursue SLN authorizations only where a federally registered pesticide is approved for use(s) similar to the manner in which the SLN pesticide would be used.” The guidance provided: “Given our understanding of how cannabis is cultivated and the intended way cannabis plant materials may be consumed by humans, we anticipate that a federally registered pesticide would be regarded as having similar use patterns if the federally registered product is approved for use”:
- on food;
- on tobacco;
- by the same type(s) of application methods;
- on crops with agronomic characteristics similar to cannabis; and
- in the same kind of structure (e.g., greenhouses/shadehouses) or on the same kind of site (e.g., outdoor dryland site) as the proposed SLN use.
Thus, in 2015, it appeared EPA was willing to consider SLN approvals for pesticides to be used on cannabis if the pesticides met the above-listed criteria.
Despite the 2015 guidance, it does not appear that any SLNs have been approved by EPA for cannabis. In states where production is legal, a list of pesticide products that can be used in cannabis production is often provided on the state website. Furthermore, at least one state posts on its website a partial listing of federally approved products that cannot be used on Cannabis.