The law of unintended consequences strikes again

A good crowd gathered for the PestEx seminar on the Sustainable Use and Biocidal Products Directives held on Wednesday morning 6 April, the first day at PestEx. Perhaps they were attracted by the sub title just tell us how to get it right or maybe they had heard of the farce that is currently unfolding in the corridors of power.

And farcical it definitely is. If Antony Jay and Jonathan Lynn, the creators of Yes Minister, had written the plot, you’d have said it was farfetched, but this one is true.

For all the best reasons, the new government announced early on in its life that there would be no further gold-plating of EU Directives. Great news! Instead EU Directives would be simply copied across into UK law – something which has now become known as ‘copy-out’.

So what does copy-out have to do with the Sustainable Use Directive (SUD) and the Biocidal Products Directive (BPD)? Those of you who keep up with these things will know that whilst the scope of SUD is very much plant protection and agriculture there is a clear expectation that biocides will get its own version of SUD in due course. The anticipated impact of this biocidal products SUD has been the introduction of legal requirements for training and certification of biocide users, advisers and so on. But all that may now have changed.

The agricultural SUD is in its final stages of being brought into UK law. This has to be achieved by 26 November 2011. To this end the old government had issued a consultation document. When the new government announced the results of the consultation at the end of last year they said implementation would take a ‘light touch’. The Defra press release stated: “As UK pesticides safety standards are already amongst the highest in Europe, only minor changes are necessary to meet the new requirements and no compelling evidence was provided in the responses to justify further extending existing regulations and voluntary controls.” The agriculture industry was pleased that all its efforts over the past ten or more years had paid off.

Industry horrified
The bombshell came early this year when it became clear that the government plans to copy-out UK law direct from the Directive. This will effectively be a huge backward step as the Crop Protection Association’s director of policy Dr Anne Buckenham explained. “When we realised that copy-out will mean the existing certification requirements for users and advisers will go and that the only statutory requirement will be for the person who buys a pesticide to hold a certificate, the whole industry was horrified.”

Paul Chambers from the National Farmers’ Union also spoke at the meeting. He highlighted all the work that had gone on in Europe to prevent the European Parliament introducing an over-prescriptive Directive with nonsensical constraints on the use of pesticides only now to find the UK heading swiftly backwards. He explained how the whole industry is lobbying hard to get this copy-out decision reversed.

The SUD was supposed to harmonise the way pesticides are used across the EU and to gradually bring countries which have little or no regulation in this area up to the best in the EU.

Ian Pepper, a regulatory consultant and secretary of RAMPS UK, chaired the session. He summarised the situation with a useful analogy. “It’s like introducing a requirement that anyone buying a car must hold a certificate of competence whilst removing the need to hold a license before driving off!”

‘Cross-over’ products
All this uncertainty in the agricultural version of the SUD makes things even more uncertain in the biocides area and particularly for what Ian described as the cross-over products. These are things like rodenticides which, when used to protect a crop will come under the agricultural SUD, but when used in a public health and hygiene context, even if that is on a farm, come under the BPD legislation.

The good news however is that by 26 November this year, things will have to have become a lot clearer.

If the agricultural industry’s lobbying activity is successful, the public health pest control sector will be a step closer to a legal requirement for user and adviser certification. If it fails then the status quo where any Tom Dick or Harriet can set up as a professional pest controller with no qualifications at all – an anomaly which the industry had hoped would be removed by a biocidal products SUD – will in all likelihood continue.

Dr Anne Buckenham, CPA