Legal loopholes to allow continued use of highly hazardous pesticides, GM crops

On the 27th of February, the ACB submitted substantive objections to the South African government’s attempt to backtrack on its commitments to phase out highly hazardous pesticides (HHPs), including glufosinate ammonium (GLA), by way of spurious and potentially unlawful “derogation” regulations. The rise in usage of GLA is a response to the ever-increasing number of glyphosate-resistant weeds due to the widespread use of glyphosate on millions of ha of GM crops in South Africa (SA) over the last two decades.

These derogation regulations provide loopholes to sustain the continued and unconstitutional use of toxic HHPs, which have been earmarked for phasing out, in our food and farming systems, through “exceptions.”

These regulations are patently unlawful and fatally flawed; having been made in terms of a condemned and hopelessly antiquated legislative framework. This has allowed the dismantling of the regulatory function of the state, resulting in abject regulatory failures, to the extreme detriment of the health and safety of farm workers, children living and working in industrial farming areas, society as a whole, and our environment. The state has been and continues to peddle discredited and dishonest arguments that food production in SA is doomed without the use of HHPs.

A large and growing body of evidence points to the clear linkages between pesticide exposure and serious health effects to skin, eyes, liver, and kidneys, as well as the cardiovascular, endocrine, and nervous systems. This rising concern has resulted in globally agreed definitions and increased global commitments to phase out and eliminate HHPs, along with prioritising alternatives to the use of hazardous chemicals in industrial and agricultural production.

Several applications have been made by a range of industry players, including UPL South Africa, Enviro Biochem, Kwelanga South Africa, Rainbow Agrosciences, AECI, and Villa Crop Protection, by way of the publication of copy-and-paste risk assessments (RAs) in support of why GLA should not be phased out as an HHP.

Glufosinate is a broad-spectrum, non-selective, post-emergence, foliar-applied herbicide used to control broad leaf, grass, and sedge weeds in a variety of agricultural and industrial settings, including crops, orchards, vegetables, and non-crop sites. It is often referred to as glufosinate-ammonium (GLA) because the ammonium-salt formulations are the most commonly used.

GLA is a herbicide with several unique characteristics; in particular, its mode of action as a natural amino acid that inhibits glutamine synthetase (GS), an enzyme essential for plant metabolism.

The Globally Harmonized System on Classification and Labelling of Chemicals (GHS) classifies GLA as:

  • aspiratory toxicity 2,
  • acute toxicity 2 (inhalation),
  • skin corrosion/irritation 2,
  • eye damage/irritation 1,
  • reproductive toxicity 1b (fertility),
  • reproductive toxicity 2 (unborn child),
  • specific target organ toxicity (STOT) single exposure 1 (nervous system),
  • STOT repeat exposure 2 (nervous system),
  • aquatic toxicity acute 2, and
  • aquatic toxicity chronic 2.

Glufosinate irreversibly inhibits GS, leading to intracellular accumulation of ammonia, hyperammonemia is considered one of the main mechanisms of GLA toxicity in humans. It is a highly hazardous herbicide because it can cause reproductive toxicity, neurotoxicity, and cardiovascular effects. It is also capable of causing damage to developing foetuses. Studies report premature births, intrauterine deaths, and abortions in animal experiments, and toxicity in human brains, which points to high risk to mammals.

Due to its acute and chronic adverse health effects, it has been banned in 29 countries, including European Union (EU) member countries, Morocco, and the United Kingdom. It is also included in the Pesticide Action Network (PAN) International list of HHPs.

Our objections extensively critique the published risk assessments in support of the continued use of GLA. While the data and conclusions of the RAs must and are being questioned, it is more important to call out and resist the illegitimate nature of the derogation procedures, which ultimately negate the progress made to eliminate dangerous HHPs from the agricultural landscape in SA, to ensure human and environmental health and safety.

We are deeply concerned that – despite the government’s commitment to reduce the use of HHPs – the government has, in essence, provided avenues for the persistent and sustained use of HHPs based on the interests of the agrochemical industry. This provides legal means to continue inherently illegal and unconstitutional practices. This questions the legality of key provisions in the Regulations, which are contradictory and subversive and sabotage the potential for not only reducing hazardous chemicals in our environment and our food but also preventing the ability to transition out of a chemical-dependent agricultural model that experts globally have increasingly called for, and agreed upon, in multilateral fora.

This differs significantly from the derogation procedures, for example, in the EU, which are intended for use in an emergency rather than to greenlight HHPs. Ultimately, the South African derogation procedures negate the purpose of regulations to phase out HHPs, in the guise of low risk under “realistic worst-case scenarios” and under false and perilous claims that the continued use of these HHPs is necessary to maintain/achieve food security.

Much remains unclear in terms of how decision-making is done regarding derogations as well as timeframes for decision-making, phase-out, criteria being used, and alternatives, among others.

We are deeply troubled that too much power is vested in the Registrar, who operates within the mandate of the Department of Agriculture, and which government department ultimately serves the interest of agribusiness and commercial agricultural imperatives. Further, we are extremely concerned about the lack of transparency and corporate capture, including in pesticide registration processes, and the inability of the public to access information. For example, Regulation 39 of the 2023 Regulations to Act 36 commits the Registrar – who oversees the registration, regulation, and prohibition of pesticides, among other functions – to provide an updated quarterly list of registered pesticides. Despite this, such a list is still not available.

Therefore, we urge the government to:

  • Reject these applications, prioritising human and environmental health over business interests and false claims, and prioritising alternatives to chemical-based agriculture, thus setting the tone for the future of agricultural production in SA.
  • Maintain its commitments to phase out and ban HHPs. Linked to this, the criteria used for regulatory purposes must be made available, including how chemicals are identified for phase-out and related periods.
  • Make available information regarding assessing the viability of using alternative products/techniques, as the United Nations Special Rapporteur recommends.
  • Urgently repeal Act 36 and its regulations. The incremental, contradictory, and delayed reforms that have taken place, including the 2023 Regulations, undermine the Constitution and the 2010 Pesticide Management Policy.
  • Begin an expedited, open and transparent process for a comprehensive and complete overhaul of the legislative framework governing agricultural remedies to reflect the realities of SA.
  • As part of a complete repeal and restructure of the pesticide regulatory framework in SA, an independent body should be established, made up of multidisciplinary experts, to make decisions regarding pesticide use, registration, renewal, etc. Currently, the decision-making structure is inherently unconstitutional as it does not guarantee fair administrative justice and decision-making.
  • Ensure the smooth transition towards a socially just and ecologically sustainable food system, which considers SA’s socio-economic, cultural, and ecological realities and shifts its current wholly inequitable food system towards one that recognises and aligns the agricultural and food system in the country with the rights enshrined in the South African Constitution.

You can read our objections here.