A recent decision out of the Federal Court has confirmed the federal Pest Management Regulatory Agency’s (“PMRA”) duty to conduct special reviews. More specifically, the PMRA must conduct special reviews of any pest control product containing a special ingredient banned for environmental or human health reasons in another member country of the Organisation for Economic Co-operation and Development (“OECD”).
Subsection 17(2) of the Pest Control Products Act (“PCPA”) provides that
Without limiting the generality of subsection (1), when a member country of the Organisation for Economic Co-operation and Development prohibits all uses of an active ingredient for health or environmental reasons, the Minister shall initiate a special review of registered pest control products containing that active ingredient.
Special reviews are a mechanism within the PCPA that are designed to, depending on the circumstance, alternately empower or require the PMRA to review its registration of products it has approved for the Canadian market. Importantly, special reviews provide the opportunity for the public to weigh in on the PMRA’s registration decisions.
The lawsuit was launched by two environment groups, David Suzuki Foundation and Equiterre (the “Applicants”), back in August of 2013 (note: we appeared, with co-counsel, on behalf of the Applicants at the hearing in federal court earlier this year). At the time, despite the clear wording of s 17(2), the PMRA was refusing to perform special reviews, or was significantly delaying initiation of special reviews, pertaining to products containing a number of active ingredients that had been banned in OECD countries—mostly the European Union, Switzerland, and Norway—for human health and/or environmental reasons.
The PMRA relented after the litigation against it had been commenced, and eventually announced the initiation of special reviews of products containing 23 of the active ingredients that were the focus of the lawsuit.
However, when the PMRA purported to reverse one of its special review decisions—specifically, its decision to conduct special reviews of products containing the fungicide difenoconazole—the Applicants brought the matter before the federal court.
The PMRA argued that difenoconazole had not, in fact, been banned for all uses in an OECD country. Although Norway had banned the use of difenoconazole, it permitted the importation of seeds treated with it for certain restricted purposes. The Applicants argued that the evidence established difenoconazole had been banned in Norway and that the PMRA was prohibited from reversing its decision to initiate a special review by the administrative law doctrine of functus officio.
Among additional further relief, the Applicants sought a declaration that the PMRA had unreasonably delayed in fulfilling its mandatory duty under s 17(2) to conduct special reviews pertaining to several active ingredients featured in the lawsuit.
In its decision, the federal court agreed that the PMRA had, in fact, violated the PCPA when it refused to conduct special reviews of products containing a number of active ingredients.
It declined, however, to find the PMRA functus officio in relation to its defenoconazole decision.
It also left somewhat unaddressed the issue of whether there had been an unreasonable delay.
The PMRA has recently been making changes to how it exercises its mandate under the PCPA in regulating pest control products. This appears to be in response to increasing pressure to do so from the public at large, environmental groups and, recently, the Federal Commissioner for the Environment, who recently found that the PMRA was failing to fulfill key aspects of its statutory mandate—including in relation to special reviews.
The PMRA announced earlier this year its intention to end “conditional registrations” of pest control products following sustained public criticism of the practice. On June 1, 2016, it issued a final decision to end the practice.
It also has been busy initiating special reviews in response to OECD country bans.