Pesticide spurs free speech flap

If the state and federal governments get their way, night-flying planes will soon resume dousing the Monterey Peninsula with a moth-targeting pesticide, before they move on to other areas of Northern California.

State regulators insist the chemical compound is safe. But they also insist they can’t disclose much of what’s in it.

“Trade secrets,” said Steve Lyle, spokesman for the state Department of Food and Agriculture.

The mystery has opened a free-speech front in California’s latest battle over potential health risks associated with aerial assaults on crop-threatening insects, in this case the light brown apple moth.

Experts say the Monterey dustup pits the public’s right to know against the needs of pesticide manufacturers to shield the ingredients of their products from competitors.

Similar clashes between the 1st Amendment and trade secrets erupted over unauthorized leaks about an Apple Computer product and Internet postings of DVD decryption codes. Another skirmish came after a former employee tried to write about Oprah Winfrey, in defiance of a confidentiality agreement.

The Monterey fight centers on whether the government, at the behest of a corporation, should refuse to identify the chemicals that it sprays over homes, businesses and schools, as well as orchards and vegetable fields.

“It’s outrageous,” said David Dilworth, executive director of Helping Our Peninsula’s Environment in Carmel. “Democracies don’t do that.”

But state officials say that, under trade secrets laws, they have no choice. Only the active ingredients in pesticides are routinely disclosed. Other components that make up the formula -- so-called inert ingredients -- are not.

“Product formulation is a classic definition of a trade secret,” said Polly Frenkel, chief counsel for the state Department of Pesticide Regulation.

With money from the U.S. Department of Agriculture, and the blessing of the Environmental Protection Agency, state crews last month began applying the chemical blend known as CheckMate over 60 square miles of Monterey County.

A pheromone in the mixture disrupts the apple moth’s breeding cycle.

The ensuing controversy has followed a path as twisty as the winged critter in flight.

The Monterey Peninsula environmental group filed suit to stop the spraying after dozens of people said the initial application left them with asthma-like symptoms, burning eyes, rashes and stomach pains.

A Monterey County judge ordered a temporary halt, saying he needed more information about the health effects of an inert substance that was believed to be in the spray -- polymethylene polyphenyl isocyanate, which environmentalists say can be hazardous.

The Santa Cruz Sentinel newspaper had published a list of ingredients, including PPI, citing the EPA as its source. The EPA later said it released the list to the paper by mistake and that CheckMate did not contain PPI.

“They had no problem with it for two weeks,” said Don Miller, Sentinel managing editor. “The EPA had this strange change of heart.”

EPA officials have since stopped talking. The agency did not respond Wednesday to questions that it had asked The Times to submit in writing.

In a statement released earlier, the EPA said that CheckMate’s ingredients “have been evaluated for safety and have been found to meet the agency’s requirements for the protection of human health and the environment.”

If the court permits, the state plans to spray in the Salinas and Santa Cruz areas next month. Lyle said the moth was a danger to scores of crops.

Meanwhile, the pesticide company, Oregon-based Suterra, demanded that the Sentinel remove the ingredients from its website, and the newspaper complied -- but only briefly.

Suterra also went to court in Los Angeles this week to seek an injunction prohibiting the Santa Cruz Sentinel and the Monterey County Weekly from publishing the ingredients. A judge refused to grant an immediate order and set another hearing for December.

At the same time, a Monterey judge has rejected Suterra’s request to seal all records referring to the ingredients.

Suterra did not return phone calls.

Roger Myers, a 1st Amendment attorney who represents the Monterey County Weekly, said a federal court in 1996 ruled that pesticide ingredients cannot be withheld from the public as trade secrets, although their specific formulation can be kept under wraps.

Myers said other rulings have decreed that when, in a matter of public interest, a conflict develops between the 1st Amendment and trade secrets, free speech must prevail.

“Nobody understands what Suterra and the EPA are doing,” he said.

Peter Scheer, head of the California First Amendment Coalition, said case law on free speech-trade secrets tensions is still evolving. But the EPA’s disclosure of the CheckMate ingredients makes Suterra’s position “weak.”

“You can’t protect a trade secret if it is no longer a secret,” he said. “They wouldn’t be able to get that genie back in the bottle.”

But a state pesticide department spokeswoman, Veda Federighi, said her agency remains bound to secrecy. She said her department and the EPA have honored trade secrets for countless pesticide products while making certain they are safe.

“There are some people who just choose not to believe that,” Federighi said.

Among them is Dilworth, who has filed a Freedom of Information Act request with the EPA for the CheckMate ingredients. “We don’t trust anything they say,” he said.

An attorney for the peninsula group, Alexander Henson, said trade secrets laws allow the EPA to disclose the identity of pesticide ingredients if the agency has reason to believe they are harmful. Henson said that where CheckMate is concerned, the public can only take the EPA’s word that there is no cause for worry.

“It just doesn’t seem right that a secret ingredient can be sprayed over an unsuspecting population,” he said.

paul.pringle@latimes.com