Die-off tied to pesticide label?
Fyfanon, the pesticide at the
center of the labeling flap
(Newsday / Michael E. Ach)
BY JOE HABERSTROH
In November 1994, the Environmental
Protection Agency wrote Cheminova Inc. that it had rejected the
chemical company's proposed label for the pesticide Fyfanon, a brand
name for malathion.
The EPA said the label needed a warning
that the spray should not be used "around bodies of water where fish
or shellfish are grown and/or harvested commercially."
almost five years later, in September 1999, when tons of Fyfanon
were sprayed to kill mosquitoes in neighborhoods that drain to Long
Island Sound, the label still did not include the suggested
The restrictive language didn't appear on Fyfanon
packaging until the following month, a few weeks after millions of
lobsters began to die in the Sound.
The Fyfanon label's
painstaking evolution, as charted in documents filed as part of
lawsuit lobstermen are waging against Cheminova, illustrates how
seemingly minor wording changes can take years to materialize on
55-gallon drums of pesticides, even though they are recommended by
the government. The lobstermen say Cheminova was negligent in
allowing Fyfanon to be used bearing what they claim was an outdated
Whatever the resolution of the label question, it
remains unclear whether the spraying had any impact on the lobsters.
Scientists agree only that pesticides may have played a role, along
with unusually warm water temperatures, a parasitic disease and
other environmental factors. To prove negligence, however, the
lobstermen have only to prove that the Fyfanon spraying was a
substantial factor in the lobster collapse, not the main
Labeling deadline debated
headquartered in Wayne, N.J., and the U.S. subsidiary of Danish
chemical maker Cheminova A/S, argues that the EPA never gave it a
"specific, immediate starting date for use of the new label,"
according to papers filed by Christopher Kelly, the company's
In an interview, Kelly also said the EPA
was involved with New York City's Fyfanon-spraying program in the
summer of 1999, as public concern heightened about mosquitoes that
carried the potentially deadly West Nile Virus.
"The EPA has
never said there was a problem with what occurred here," Kelly
Given two weeks to respond to questions, the EPA said
Thursday it was not able to comment on the issue beyond the
documents in the court file.
Whether the lobstermen prevail
on the label argument may determine whether the $125-million lawsuit
will be allowed to proceed. U.S. District Judge Thomas C. Platt Jr.
is considering whether to dismiss the suit or allow a
"If this product is misbranded and not in compliance
with the EPA mandates ... then we're not taken out of court," said
Peter Freiberg, a New Orleans attorney who is on the lobstermen's
Regulation of the more than 20,000 pesticides
registered with the EPA is largely administered through oversight of
the labels on such products. Pesticide makers must seek EPA approval
when they want to change their labels, which they often do when they
discover a new market for their pesticide.
For years, critics
have panned the label-based system. They say it is an inadequate
substitute for more aggressive regulation and over-reliant on the
people who use the chemicals to fully understand what is written on
"Some of the risks are so significant that you
could not presume labels are an adequate way to manage that risk,"
said John Wargo, a professor of risk analysis and environmental
policy at Yale University who serves on a review board to the EPA's
The lobstermen's lawsuit is highlighting a
series of exchanges between the EPA and Cheminova that began in June
1994. At that time, the company sought permission to allow Fyfanon
to be used on triticale, a 30-year-old wheat-rye hybrid that is
mostly used to feed livestock.
But in November 1994, the EPA
rejected Cheminova's proposed label and asked the company to add
various restrictions. At the same time, the EPA also told Cheminova
it would not need to conduct studies on "the magnitude of residues
in ... fish and shellfish resulting from the application of
malathion ... " as long as it warned users of the pesticide to
refrain from applying the chemical "around bodies of water where
fish or shellfish are grown and/or harvested
As far as Cheminova was then concerned, Kelly
said, its old label continued to be legal.
In January 1997,
the EPA approved another Cheminova request to make changes to its
label. But it did so under the condition the company add various
restrictions, including the ban on Fyfanon's use near commercial
Cheminova then had 18 months to comply. But
17 months later - in June 1998 - Cheminova submitted yet another
request to change the label. In effect, that request re-started the
EPA's 18-month compliance countdown.
This time, it won
approval in six months - in December 1998. Again, the EPA asked for
the protective language about fish and shellfish.
months later, the West Nile Virus issue mushroomed across the
metropolitan area. Fyfanon was sprayed to kill mosquitoes, but it
had the 1994 label. Under the law, companies are allowed to use
their old stocks of labels until they run out. Kelly said Cheminova
prints 10,000 to 15,000 labels at a time for one of its
Kelly emphasized that the EPA had the power to
order immediate changes to the label at any time, but chose not to
do so. He said EPA could even have ordered an "interim" label to be
used before any of the 18-month deadlines passed.
Even if the
EPA did not act more forcefully, lobstermen's lawyers contend,
Cheminova should have changed language it had been told several
times to change. "Our argument is, given that EPA had been telling
Cheminova this since 1994, they should have put it on the next label
re-printing, which was in March of 1999," Freiberg
Long road to warning label
It took the
Environmental Protection Agency almost five years to get a warning
on Fyfanon, a malathion-based pesticide, that the spray should not
be used near commercial fishing grounds. A sampling of what
March 3, 1994. EPA accepts Cheminova Inc.'s Fyfanon
label, which says the product is "toxic to fish" and should be kept
out "of lakes, streams, ponds, tidal marshes and
June 23, 1994. Cheminova asks EPA if it can
update its label for use on an additional agricultural
Nov. 21, 1994. EPA rejects Cheminova's proposed label
but says it would approve if restrictions are added, including:
"Application may not be made around bodies of water where fish or
shellfish are grown and/or harvested commercially."
1996. Cheminova asks again to alter the label, which has not
Jan. 9, 1997. The EPA accepts the new, proposed
label. But it again asks for the restrictive wording about areas
where fish or shellfish are harvested. Cheminova has 18 months to
June 6, 1998. Just before the deadline to change the
label, Cheminova asks again to modify the label.
1998. EPA accepts the re-worked label, which contains the language
about fish and shellfish.
September 1999. Fyfanon sprayed by
New York City and Suffolk County, but the pesticide carries labels
that were approved in 1994. So, the language about fish and
shellfish is not there.
October 1999. The fish and shellfish
warning first appears on barrels of Fyfanon.
DID PESTICIDE KILL
The public needs to know. So judge should
let lawsuit go to trial
January 1, 2005
The death of millions of lobsters in Long Island Sound
in 1999 was a calamity for those who harvested the crustacean
delicacy, and it's still the central focus of a lawsuit that may or
may not get to trial. We hope it does, so the public can hear more
about the role of pesticides in the lobster die-off.
event took place at the same time as governments such as New York
City and Suffolk County were spraying a pesticide called Fyfanon
from helicopters, to combat mosquitoes thought to be carrying the
West Nile virus. Lobstermen in New York and Connecticut believe that
the pesticide was a culprit in the die-off. So, in 2000 they sued
pesticide companies over the use of Fyfanon and other agents, such
as Scourge, which is also involved in lawsuits by the nonprofit
environmental organization, Peconic Baykeeper, against Suffolk
Now that the plaintiffs have settled with two of the
companies, the only defendant remaining is Cheminova, the
manufacturer of Fyfanon. U.S. District Judge Thomas C. Platt Jr.
will decide whether to let the case go forward or grant Cheminova's
motion to dismiss.
A major claim of the lobster industry is
that Cheminova negligently used an outdated label on Fyfanon. The
company and the federal Environmental Protection Agency have been
wrestling since 1994 over EPA's request that the firm add language
to the label to warn against its use near bodies of water with
commercially harvested fish or shellfish.
argue that the whole system of relying on labels, instead of more
effective forms of regulation, is at best questionable. Like it or
not, however, the question of labels will be at the heart of Platt's
No one is claiming that
pesticides alone killed the lobsters. In fact, scientists at a Stony
Brook University symposium last October cited a "perfect storm" of
factors, also including sustained high water temperatures. But
there's no question that malathion, the nasty chemical in Fyfanon
and other pesticides, is dangerous. Like military nerve gas, it
attacks the enzyme that makes the nervous system work.
public needs to hear more about what this stuff may have done to
lobsters. So the lobstermen should press their case against
Cheminova, rather than settle, and Platt should let the suit go to
trial. That's the best way to explore all the facts, for everyone to
hear, in open court.
Copyright © 2004, Newsday, Inc.