Ontario Bans Cosmetic Pesticides
On April 22, 2009 – Earth Day – Ontario’s ban on the sale and use of pesticides for cosmetic purposes took effect. Unlike municipal pesticide by-laws, the provincial ban not only restricts the use of certain pesticides and pesticide ingredients, but also their sale. The province-wide ban is intended to create “one clear, transparent and understandable set of rules across the province.”
Under the ban, certain pesticides may no longer be used to control insects, weeds and fungal diseases on private or public property. However, they may continue to be used “in and around the home” to protect health and safety.
Ontario’s Minister of the Environment stated: “I’m proud to say that, when the ban takes effect on Earth Day, we will have eliminated this unnecessary risk to our environment, our families, and especially our children.” However, the ban – heralded as “one of the toughest in the world” – is not without controversy, as evidenced by the thousands of supporters and opponents that commented on the proposed legislation.
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Why are Pesticides a Concern?
Pesticides are designed to kill or control harmful or unwanted living organisms. They can take the form of chemical substances, biological control organisms, or other forms. Pesticides serve important functions, including: improving quality and yield in agricultural production; preventing and controlling insect infestations; controlling the spread of harmful diseases and toxins; controlling noxious plants; and protecting pets from fleas and ticks.
There are risks, too. Even when applied properly, pesticides and their breakdown products can contaminate
soil, water and air, harming non-targeted fora and fauna. Some pesticides can persist in the environment
long after being applied, and can accumulate in the body tissues of wildlife, becoming more concentrated
up the food chain.
| Pesticides Linked to Pollinator Decline |
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| Pollinators – birds, bats and insects that aid in the fertilization of flowering plants by transporting pollen – play a vastly important role in the environment. It has been estimated that three-quarters of the world’s flowering plant species depend on pollinators. With a significant percentage of humanity’s food supply dependent on pollinators, and nearly 100 kinds of food crops worldwide requiring pollination by honeybees alone, the importance of pollinators for global agricultural production is clear.
Pesticides are considered to be one of the main threats to pollinators, along with disease, habitat loss and degradation, monoculture (which is often supported using pesticides) and the introduction of exotic species. Recent widespread declines in pollinator populations around the world have been cause for significant concern and debate. Most notable is the mass die-off of commercial colonies of the European honeybee (Apis mellifera) that first occurred around 2006 and has affected colonies in the U.S., Canada, Australia, Brazil, China, Europe and other regions. This mysterious phenomenon has come to be known as Colony Collapse Disorder (CCD). Many theories on the cause have been advanced, including the use of a relatively new class of crop pesticides called neonicotinoids. Current thinking is that the cause may be a combination of factors (including pesticide use) that, together, weakens colonies and makes them more susceptible to disease. This widespread population decline is not limited to commercial honeybees; considerable declines have also been observed in wild populations of other pollinators, including wild bees, bats and hummingbirds. In Canada, the rusty-patched bumblebee, once a common species in southern Ontario, has not been seen for several years. Whether pesticides have caused or contributed to the most recent pollinator declines or not, there can be no doubt that reducing the volume of pesticides in the environment would be beneficial to pollinators. Not only would this reduce the potential threats posed by pesticide chemicals, but pollinators thrive in an environment that includes a variety of food sources; green, weed-free lawns have been likened to “deserts” for bees. By ending our preoccupation with perfect lawns, and instead planting more hardy native species, allowing wildflowers and other “weeds” to grow along roadsides and in parks, we could reduce our reliance on pesticides while, at the same time, encouraging more resilient and diverse pollinator communities. |
Description
The Cosmetic Pesticides Ban Act
Bill 64, the Cosmetic Pesticides Ban Act, received Royal Assent on June 18, 2008. Bill 64 amended Ontario’s Pesticides Act to prohibit the use “in, on or over land” of certain pesticides that may be used for cosmetic purposes. “Cosmetic” is defined as “non-essential.” The sale of certain pesticides is also prohibited. Further, municipal cosmetic pesticide by-laws are now rendered inoperative.
There are a number of exceptions to the prohibition on use, including agriculture, forestry and promotion of public health and safety. Golf courses and “other prescribed uses” are conditionally exempt. MOE stated that it will “focus its initial [enforcement] efforts on education when responding to reports of suspected non-compliance.”
Pesticides Regulation O. Reg. 63/09
A new general regulation made under the Pesticides Act, O. Reg. 63/09, came into force with the Cosmetic Pesticides Ban Act on April 22, 2009, to give the ban full effect.
Pesticide Classification
The new regulation created several new classes of pesticides. In particular:
- Class 7 includes dual-use (i.e., cosmetic and non-cosmetic) pesticides whose use is banned for cosmetic purposes;
- Class 8 pesticides are cosmetic pesticides that are banned from sale; and
- Class 9 includes pesticide ingredients that are banned for cosmetic use.
Pesticides are to be classified in accordance with criteria set out in the regulation. The new Pesticide Classification Guideline for Ontario, released in conjunction with the filing of the regulation, explains the pesticide classification system in more detail. The MOE Director continues to be responsible for making the final decision about classifying pesticides, and has some discretion in exercising that duty.
Exemptions from the Prohibition on Use
The new regulation defines “agriculture,” “forestry,” “golf courses” and “promotion of public health and safety” for purposes of the exemptions in the Pesticides Act. The regulation also sets out conditions required for golf courses to be exempt, and to engage the health or safety exemption for poisonous plants, the protection of buildings and structures, and public works.
Other exemptions not listed in the Pesticides Act are prescribed under O. Reg. 63/09, including:
- specialty turf,
- arboriculture,
- sports fields (for national or international sporting events only),
- structural exterminations,
- scientific purposes,
- compliance with other legislation, and
- natural resources.
Requirements for Sale
O. Reg. 63/09 sets new restrictions on the sale of cosmetic pesticides. Purchasers of Class 7 pesticides must receive ministry-approved information about restrictions on cosmetic use. The regulation also requires vendors of Class 7 pesticides, effective April 22, 2011, to restrict public access to those pesticides by restricting their display.
Notice Signs The regulation sets out signage requirements to alert the public when certain pesticides are in use. When a licensed professional uses lower-risk pesticides or biopesticides (i.e., Class 11), a green-coloured sign must be used.
Other Changes Pesticide storage and fire department notification requirements now apply not only to operators and vendors, but to pesticide manufacturers as well. These changes were made in response to a July 2007 fire at a pesticide packaging facility in Dundas, Ontario. In this reporting year, the ECO received numerous applications related to that fire; for more information, see section 5 of the Supplement to this Annual Report.
EBR Classification
On April 22, 2009, MOE filed a regulation amending O. Reg. 681/94 (Classification of Proposals for Instruments), made under the Environmental Bill of Rights, 1993 (EBR). The amendments revoke the previous list of Pesticides Act instruments prescribed under the EBR, and replace them with instruments under O. Reg. 63/09. MOE did not post a proposal notice on the Environmental Registry or consult the public on this regulation.
Implications of the Decision
The Ontario government’s decision to prohibit the non-essential use of pesticides will undoubtedly reduce the use and release of pesticides. Prohibiting sales will help to ensure that certain pesticides are kept out of use. However, the numerous exceptions mean that banned pesticides will continue to be used – and deposited in the environment – in many situations.
Over time, reducing pesticide use should increase ecosystem resilience, promote the resurgence of natural controls on pests, and result in a landscape with greater biodiversity, creating habitat and food sources for many species. The corollary is that the pesticide ban will likely result, at least at first, in more weeds and pests in lawns and gardens on both private and public property. However, an increase in the availability and use of greener alternatives should, with time, help mitigate the situation. Indeed, the Ontario government hopes that the cosmetic pesticide ban “is going to drive new green products in the economy,” and will invest $480,000 to “encourage the development of lower-risk pesticides and other green alternatives.” In the short-term, however, the ban may have significant effects on the economic health or continued viability of many lawn care businesses, effectively sunsetting components of an industry.
While the government provided ample warning that the law would take effect in spring 2009, the full details of the ban were not confirmed until O. Reg. 63/09 was filed on March 3, 2009. In particular, the lists of pesticides in some classes changed significantly from those originally proposed in November 2008. This short transition period meant that manufacturers, distributors and retailers had to find a way to dispose of any unsold Class 8 products, creating a potential waste problem.
Finally, by making municipal pesticide by-laws inoperative, the legislation prevents Ontario municipalities from enacting tougher pesticide rules within their boundaries. However, this uniform approach will create greater certainty, particularly for retailers and commercial applicators operating across the province.
Public Participation & EBR Process
MOE undertook consultation on the cosmetic pesticides ban in three stages, using three separate Environmental Registry notices. MOE received a staggering 6,997 comments in response to the policy proposal notice, 4,115 comments on the proposed Cosmetic Pesticides Ban Act, and 3,989 comments on the proposed regulation required to implement the ban. In addition, MOE reported that it held meetings with a broad range of stakeholders.
ECO Comment
Pesticides are biologically active substances specifically designed to kill target organisms, but can also impact non-target organisms. Reducing the volume of pesticides deposited in the environment is a worthy goal, and curbing unnecessary pesticide use is a logical place to start. This provincial legislation will ensure that cosmetic pesticide use is restricted across the province, not just in select municipalities.
MOE did a commendable job on public consultation for this initiative. Its use of the Environmental Registry to give notice and consult on the policy, Act and regulation, along with information sessions, provided ample opportunity for Ontarians to express their views. However, MOE also should have used the Environmental Registry to meet the public’s right to comment on the Pesticide Classification Guideline and on the EBR classification of Pesticides Act instruments.
The cosmetic pesticides ban has been criticized in some quarters for not being “based on science” (see box). Indeed, the legislation appears to be more cautious than responsive to specific scientific information. However, such an approach is legitimate; it is an acceptable policy choice to decide, as MOE did here, that any risk presented by the use of pesticides – even one deemed “acceptable” by federal regulators – should be avoided, particularly in cases where that risk is unnecessary. However, MOE should have been more transparent about the basis for its decision.
Making Risk-Based Environmental Decisions
The decision of the government to ban the cosmetic use of pesticides has been controversial, partly due to confusion about the risk-based decision mechanism used as a rationale. Stakeholders on both sides of the issue have pointed to the MOE’s Statement of Environmental Values (SEV) to support their argument.
Many opponents of the legislation charge that the ministry is committed in its SEV to making decisions that are “science-based” and they did not do so in this case. They argue that it is inappropriate to ban at least some of these pesticides because Health Canada and the World Health Organization have assessed them using a broadly-accepted scientific approach and deemed them to pose acceptably low ecological and health risks. Low is not zero, but from a scientific point of view there are always uncertainties and unknowns associated with any conclusion. It satisfies science to be confident that the uncertainty is within accepted limits.
Some supporters of the legislation cite the requirement in the SEV that the ministry take a “precautionary approach” to decision-making as justification for the ban. The precautionary approach requires that where there is a threat of serious or irreversible damage the lack of full scientific certainty shall not be used to postpone cost-effective measures to prevent environmental degradation. There is significant dispute about the seriousness of the risk presented by cosmetic pesticide use, and the degree of scientific certainty about that risk. This dispute is irresolvable; if the science is certain, the magnitude of the risk is known, and vice versa. In any event, the ministry did not declare the precautionary principle to be the basis of this policy decision.
In this case, it appears that the policy-makers accepted that the risks associated with such pesticide use were low by scientific standards, but then questioned if even very low risks are justified when the benefits to the practice are “cosmetic” (where that term has the connotation of being superficial, inconsequential or even trivial). They ask why society would accept any risk for no benefit and conclude that we should not. Thus, a new decision-making tool has been added to the environmental policy tool kit; perhaps it could be labelled the “No Risk for No Benefit” approach.
While the ECO would like to see efforts at pesticide reduction in all contexts, the exemptions to the ban are generally reasonable. The ECO hopes that MOE will be judicious, however, about prescribing any further exemptions. The ECO urges MOE to consider a schedule for the eventual phase-out of pesticides for exempted uses, as green alternatives and approaches to pest management become more mainstream.
The cosmetic pesticides ban represents a shift in philosophy for the province. MOE should have considered the economic impact of this shift on pesticide applicators, and how this specialized group could be supported in the short-term. Historically the province has assisted with the transitioning of industries whose viability is substantially undermined by regulatory changes.
MOE’s approach to early enforcement of the ban seems reasonable. However, for the legislation to
ultimately achieve its purpose, MOE will need to step up enforcement after a reasonable transition period,
and ensure that it allocates adequate resources to continue enforcement on an ongoing basis.
The ECO will continue to monitor this issue and report on the ministry’s progress in implementing and
enforcing the cosmetic pesticides ban in the future.
| This is an article from the 2008/09 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2009. "The Pesticide Ban." Building Resilience, ECO Annual Report, 2008-09. Toronto, ON : Environmental Commissioner of Ontario. 68-73.
