Zero-Risk Pesticide Policy Is Left Intact by Justices

The Environmental Protection Agency must ban the use of all pesticides on crops used in processed foods if they pose any risk of causing cancer--no matter how small--under a lower court ruling left intact Monday by the Supreme Court.

The high court’s decision is likely to prompt the banning of at least four pesticides that are commonly used on tomatoes, raisins, wheat and cotton.

More broadly, it almost surely will spark a new debate in Congress and in the Clinton Administration over a 35-year-old law that sets a zero-risk policy for carcinogens in the food chain.

This provision had gone unenforced for many years, and officials of the George Bush Administration announced five years ago that they would not ban chemicals believed to pose only a trivial or negligible risk of causing cancer in humans.

But environmentalists immediately went to court and demanded that the law be applied as written. A key ruling came last July when the U.S. 9th Circuit Court of Appeals ruled that EPA “has no discretion” to permit the use of any pesticide that causes any cancer in humans or laboratory animals.

“Congress intended to ban all carcinogenic food additives, regardless of the amount or significance of the risk,” the appeals court said.

Apparently believing the issue must be resolved by Congress, the high court Monday refused even to consider an appeal filed by the makers of agricultural chemicals.

Hailing the action, environmentalists said the decision will force the food industry to end its heavy reliance on chemicals.

“Legal food should be safe food,” said Al Meyerhoff, an attorney for the Natural Resources Defense Council, which had sued the EPA over the issue. “At a time when cancer strikes one in three Americans, we should not lower our guard against this disease.”

In a muted response, industry leaders said they were disappointed that the court refused to consider the wisdom of the so-called “Delaney Clause,” named after New York Rep. James J. Delaney, who attached the ban on carcinogens to the Federal Food, Drug and Cosmetic Act in 1958.

It says “no (food) additive shall be deemed safe if it is found to induce cancer when ingested by man or animal.”

This provision “is outmoded and needs to be updated to reflect the best modern science available,” said Jay J. Vroom, president of the National Agricultural Chemicals Assn.

He and other industry advocates, joined last year by Bush Administration officials, argued that consumers would be hurt more than helped by removing from the market pesticides that pose only a one-in-a-million risk of causing cancer.

Last year, then-EPA Administrator William K. Reilly criticized the rigid rule adopted by the 9th Circuit Court. “As a result of this decision, for example, low dietary risk pesticides could be removed from the market, only to be replaced by pesticides posing potentially more harmful effects,” Reilly said.

At least 32 pesticides are carcinogens at some level and may be banned under the standard upheld by the high court, EPA officials said.

Officials say the matter is further complicated because the “Delaney Clause” applies only to additives and processed foods, not to raw foods. This creates the potentially confusing situation whereby, for example, farmers may be permitted to use a particular pesticide on a raw tomato, but not on a tomato that will be used in processed food.

The issue now falls in the lap of new EPA Administrator Carol Browner. In an earlier statement, she stressed that the pesticides at issue before the high court do not pose a danger to consumers.

“The current debate is not about health risks, but about the legal interpretation of the statute,” she said.

In an interview with The Times, she said Congress and the Administration need to rethink the Delaney Clause. “There are now many things that we understand that we didn’t understand 35 years ago and which now need to be brought to the table,” she said.

On Capitol Hill, Sen. Edward M. Kennedy (D-Mass.) and Rep. Henry A. Waxman (D-Los Angeles) are sponsoring legislation that would replace the zero-risk standard in the Delaney Clause with a one-in-a-million risk standard. However, the legislation would extend that standard to cover raw foods as well as processed ones.

EPA spokesman Al Heier said the agency will begin action to revoke the permits for the four pesticides that were at issue in the case which reached the high court: benomyl, phosmet, mancozeb and trifuralin. “The decision is pretty clear. We don’t have much option on that,” he said.