EPA Approves New Crop Protection Tools for Hemp Farmers

This new action by EPA follows its Federal Register notice in August 2019, announcing receipt of 10 applications seeking to expand the permitted use of previously-registered pesticides to include hemp. Although not required for EPA to approve pesticide applications, the agency established a 30-day comment period, citing the fact that “initial applications involving hemp may be of significant interest to the public and to enhance transparency.” Thirty-three comments were submitted in response to EPA’s August notice. As EPA explained in an August press release “moving forward, EPA will review, approve or deny applications for use on hemp as the agency would for any other [crop].”

By way of background, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires the registration of all pesticide products for a specific use. As noted in a previous alert, FIFRA prohibits the use of pesticides on a crop not listed on the pesticide’s label.

This action marks the first time EPA has issued approvals for use of a pesticide on cannabis crops. In 2015, in a communication to the Colorado Department of Agriculture, EPA had signaled that it would consider allowing pesticide use on cannabis under Special Local Needs authorizations, which under FIFRA may be issued by states with a unique pest management concern where a federally-registered pesticide product is approved for uses similar to the manner in which the SLN pesticide would be used. But later EPA declined to approve states’ SLN registrations for use of pesticide products on cannabis, noting that “under federal law, cultivation …of cannabis is generally unlawful as a schedule I controlled substance under the Controlled Substances Act.” See here.

This landscape changed with the passage of the 2018 Farm Bill, which removed hemp from the Federal Controlled Substances Act and paved the way for EPA to approve these new use sites under FIFRA. See our earlier alert here.

Arent Fox’s Agricultural Technology group advises entrepreneurs, investors, industry groups, and companies that are developing and bringing to market new, innovative tools and technologies aimed at revolutionizing the food and agriculture sector and improving plant and animal health. Arent Fox’s Cannabis group has extensive experience counseling hemp clients on a wide range of regulatory matters, including federal and state regulatory requirements governing hemp production and processing. Our teams are carefully following developments in this area.