Recommending various herbicides, fungicides and pesticides to farmer and ag-retail clients is an important aspect of an agronomist’s role. These recommendations must be tailored to each grower’s fields in an economically viable manner and, in the case of pesticides, recommendations and the usage and storage thereof, must be within the law.
In fulfilling your duty to recommend appropriate pesticides to farmers and ag-retail clients, it’s important to stay up to date with the current list of prohibited pesticides. If you are not diligent in doing so you may inadvertently expose yourself to liability by recommending a now-prohibited pesticide, even though it was a previously tried-and-true product.
Health Canada re-evaluates pesticides on an ongoing basis to ensure they continue to meet health and environmental requirements. In some cases, re-evaluation may result in revocation of a product or product uses for certain pesticides. Health Canada may also request changes to a product’s label, including risk mitigation measures, use sites and application methods. As a result, you must be diligent in apprising yourself and your clients of any changes.
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An example of a recent and significant prohibition under the Pest Control Products Act (PCPA) involves chlorpyrifos pesticides. A prohibition of the sale of these pesticides took effect Dec. 10, 2022, with a ban on any use as of Dec, 10, 2023.
Popular chlorpyrifos brand names include Lorsban, Warhawk, Mpower, Krypton and Citadel480 EC.
Lorsban was a particularly popular pesticide across the Prairies. It provided farmers with excellent control of cutworms, armyworms, corn earworms, corn rootworm adults, chinch bugs, grasshoppers, wireworms, flea beetles and aphids. It was also lethal and controversial.
For years, environmental groups called for its ban, stating it was a threat to humans, birds, mammals and beneficial insects. Growing up on a farm, this writer recalls being chased inside by my dad when the crop duster was about to spray Lorsban near our farmyard.
Nitty gritty legal jargon
All pesticides used in Canada must be registered under the PCPA. It aims to “protect human health and safety and the environment by regulating products used for the control of pests.”
Use of unregistered pesticides is a violation of the act. The possession, storage, importation and sale of unregistered pesticides in Canada is also a violation.
For registered pest control products, it is also a violation of the PCPA to handle, store, transport, use or dispose of a pest control product in a way that is inconsistent with:
(a) the PCPA regulations; or
(b) if the product is registered, the directions on the label recorded in the PCPA register, subject to the regulations.
Health Canada verifies reports of illegal pesticides or misuse through its network of regional officers.
Unfortunately, ignorance is not a defence available to the farmer, the retailer or you. We trust no one intends to place themselves or clients in this position. However, we hope this article serves as motivation to check the list of approved pesticides and review the PCPA to ensure your information and advice are up to date and in line with the law.
Actions that do run astray of the PCPA may result in penalties under the Agriculture and Agri-Food Administrative Monetary Penalties Act. Penalties are typically imposed through an administrative process that does not involve the courts, with no resulting criminal record or imprisonment. Even so, no one wants to see a blemish on their professional record or reputation.
However, these fines can be imposed in place of, or in addition to, significantly harsher penalties under the PCPA and its regulations. If convicted, a person could be liable for a fine up to $500,000 and/or imprisonment for up to three years.
We trust knowledge of these harsher penalties conveys the importance of ongoing due diligence in recommending pesticide products to farmer and ag retail clients.
Practices to incorporate
To ensure you to avoid prescribing an unregistered pesticide or the incorrect use of a registered pesticide, we strongly recommend that you familiarize yourself with the PCPA regulations and read the labels of all pesticide products you recommend to your farmer and ag-retail clients. All pesticides registered in Canada have a Health Canada-approved label with a registration number. The pesticide label also contains specific information on how to use it.
When recommending a pesticide, agronomists should confirm that a pest control product number (PCP number) appears on the label. This PCP number indicates the pesticide has been registered by Health Canada. Agronomists should carefully read, understand and direct their clients to follow label directions.
Further, agronomists must be careful when farmers request “off-label advice” (which is not uncommon), because pesticides must not be used for purposes other than indicated on the label. To find the most up-to-date label, search online for “Health Canada pesticide labels.”
Prohibitions will become more common as the industry and Canada move toward more environmentally friendly products. Reports show Canada falls behind nearly 90 per cent of other countries when it comes to banning harmful pesticides. Staying up to date on the current list of prohibited pesticides will become particularly important in the future.
Kalen Oram is an associate in the Regina office of McDougall Gauley LLP, advising a variety of businesses on all types of corporate and commercial matters. Rochelle Blocka is a litigation associate in the firm’s Saskatoon office, with a focus on matters involving families and estates. Both Kalen and Rochelle grew up on family farms in Saskatchewan and have ongoing ties to the ag community.
