A progressive Bay Area Democrat has made multiple attempts at limiting the use of the neonicotinoid class of pesticides and seems unlikely to change course. Assemblymember Rebecca Bauer-Kahan of Orinda currently has bills targeting nonagricultural uses and neonic-treated seeds, which have successfully passed through several committees, along with their original houses in the Legislature.
Neonicotinoids are a class of insecticides related to nicotine and with a name that literally means "new nicotine-like insecticides". They act on certain kinds of receptors in the nerve synapse, according to a report on "Insects in the City" by Texas A & M. In addition to effectively targeting sap-feeding pests in agriculture, "neonicotinoids provide good control against certain beetles, fleas (Advantage flea control products and nitenpyram pills for pets), certain wood boring pests, flies, cockroaches and others," the report notes.
California's Department of Pesticide Regulation began re-evaluating commonly used products containing neonicotinoids, including imidacloprid, thiamethoxam, clothianidin and dinotefuran in 2009. Neonicotinoids are a group of insecticides that are widely used as an alternative to chlorpyrifos, which DPR ended virtually all use of in 2020.
One thing that has made neonicotinoid insecticides popular in ag pest control is their water solubility, which allows them to be applied to soil and be taken up by plants. Soil insecticide applications reduce the risks for insecticide drift from the target site, according to the Texas A & M report.
Advocates have challenged the use of treated seeds for several years. In 2017 an environmental coalition petitioned the U.S. EPA to regulate treated seeds. Frustrated at the pace to respond, the coalition followed up with a lawsuit in 2021, arguing the agency was ignoring the petition. EPA rejected the petition last fall but pledged to examine the issue in more detail.
The Department of Pesticide Regulation (DPR) denied a similar petition in 2020, citing insufficient data. Months later Assemblymember Bauer-Kahan filed legislation to ban neonic-treated seeds, pulling the bill later amid a shortened session due to the pandemic. DPR held an informational hearing the same year to further examine the existing research, which primarily focused on Midwest row crops. In February the Natural Resources Defense Council (NRDC) followed up with a lawsuit claiming DPR must regulate neonic-treated seeds.
The department, meanwhile, has been moving forward on regulations to further limit the use of other forms of neonicotinoids and to expand its budget and regulatory scope by increasing the mill assessment.
Bauer-Kahan also shifted her focus, authoring a measure last year to ban the use of neonics on lawns and gardens. Gov. Gavin Newsom later vetoed the bill, reasoning DPR “has already taken significant steps to restrict neonicotinoid uses, based on scientific review and documented uses” and said the agency will begin the process of evaluating nonagricultural uses in 2023.
Less than four months later, Bauer-Kahan decried DPR’s pace and blasted Newsom for not following through on his commitment to examine backyard use. She returned to the effort through new legislation “to ensure that the administration does as they promised.” Assembly Bill 363 would require DPR to complete its evaluation and finalize control measures for the use of neonics on turf and ornamental plants.
Asm. Rebecca Bauer-Kahan, D-OrindaTestifying in support of AB 363 during a recent policy committee hearing, Laura Deehan, state director for Environment California, argued that consumers are unwittingly turning their gardens into “bee death traps.” NRDC legislative advocate Darryl Little added that DPR approves nonagricultural neonic products at a far higher rate than in agriculture, and he sounded alarms that neonics are a neurotoxin and contaminating suburban children.
Taylor Roschen, a lobbyist for the firm Kahn, Soares & Conway representing Western Plant Health and various agricultural associations, countered that the bill would require a reexamination of neonics even without a scientific justification. Roschen is hoping to amend the language so that DPR would only set new rules if the scientific review warrants them. Bauer-Kahan has so far rejected the amendments.
With Assembly Bill 1042, Bauer-Kahan has also returned to her effort to regulate treated seeds. Last month state lawmakers in New York passed legislation to ban the use of neonic-treated seeds.
“We're in the middle right now of what many are calling an insect apocalypse,” warned Deehan in a separate committee hearing. “We're seeing dramatic biodiversity loss happening, which really threatens the web of life in which we all rely on.”
Deehan claimed the nation’s agricultural landscape is 48 times more toxic than 25 years ago and blamed pesticides applied to seeds for colony collapse disorder in bees and declining populations of migrating songbirds.
In April, the California DPR released its annual Pesticide Use Report for 2021 which confirmed preliminary data that showed a more than 10% statewide decline in pesticide use compared to the prior year.
Numerous ag interest groups have pointed out that the causes of honey bee losses have not been conclusively identified and factors beyond pesticides are involved.
Bauer-Kahan described AB 1042 as “an incredibly simple bill” that ensures DPR “actually regulates all the pesticides.” She charged that banned pesticides are coming into California on the seeds and putting farmworkers, the environment and the food system at risk. She stressed that the measure did not pose any sort of ban and would simply require DPR to regulate the seeds.
Lucas Rhoads, an NRDC staff attorney, added that growers “would have plenty of options available to them,” since 210 seed treatment products are already registered for use in California. In a subsequent hearing, Hardy Kern, director of government relations for the American Bird Conservancy, a co-sponsor on the bill, argued that it hurts agricultural producers when they do not have full knowledge of the active ingredients in the products, while adding more costs and mixed results on efficacy.
“Though they are an example of precision agriculture, there is no data to support the thought that seed treatment applications replace other types of pest control,” said Kern.
A coalition of nearly two dozen farm groups, however, viewed the bill as essentially a ban, since the legislation would prohibit the sale, delivery or use of treated seeds not registered with DPR for that purpose. Starting in January, no treated seeds would be available for potentially several years while DPR performs an extensive regulatory review across multiple products, according to an opposition letter.
“Treated seeds and pesticide-treated seeds are very important for both organic and conventional agriculture,” said Dennis Albiani, a lobbyist for the California Seed Association, during a committee hearing.
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The treatment protects plants from pests, diseases and fungi in infancy, the most vulnerable stage, providing “the best chance to develop into healthy, high-quality plants,” according to the bill’s opponents. It maximizes the harvest potential and reduces the amount of foliar applications later in the lifecycle. Albiani added that it also minimizes the number of passes by tractors and the amount of labor needed, reducing the carbon footprint as well as the potential for human exposure to pesticides.
Albiani rejected Bauer-Kahan’s assertion that treated seeds are “an incredibly huge” loophole in California regulations.
Taylor Roschen, Kahn, Soares & Conway“Treated seeds are regulated,” he stressed. “Like all pesticides, the active ingredients are approved by U.S. EPA. They are given a label that strictly controls how those materials are used as treated seeds.”
California also regulates them as treated articles, as it does with treated wood, firefighter garments and marine paints.
Albiani worried that adding yet another layer of regulations would deter some manufacturers from going through the lengthy review process to register the products for niche commodities like kale, bok choy and cauliflower.
“It's upending your business. It's changing your business fundamentally,” added Roschen. “It's death by a thousand cuts with issues like this that really impact the small, diversified farms in California.”
Roschen struggled to understand what California’s new regulatory structure for the existing treated seeds would look like under the limited description presented in the bill.
According to Albiani, the bill presents a complete change in how California regulates pesticides, since DPR currently only regulates pesticides while CDFA handles seeds. He is proposing amendments to ensure that schism is not crossed and to confirm the label conforms to the regulations.
Republican Senator Brian Dahle, who runs a mostly organic seed farm in Lassen County, viewed treated seeds as “very necessary” and called it critical to ensure the two agencies “stay in their lanes.” He pointed out that California has no documented cases of neonic-treated seeds harming wildlife or people.
Several committees nevertheless have approved the measure along party lines. A fiscal analysis found AB 1042 could result in increased costs for subsequent regulations and to county agricultural commissioners for the additional local enforcement. Opponents charged it would add a significant expense to the department and commissioners, whose budgets are already structurally imbalanced.
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