Environmentalist groups sue California over pesticide-treated seeds “loophole”

On February 22, 2023, the Natural Resources Defense Council and other environmentalist and public health groups filed a petition against the California Department of Pesticide Regulation over a “loophole” that allows seeds to be treated with pesticides without traditional pesticide regulation. The move comes after the Environmental Protection Agency denied a petition from the Center for Food Safety to eliminate an exemption for treated seeds in federal pesticide regulations.


Regulatory background

  • The California Department of Pesticide Regulation (CDPR) oversees pesticide regulation in the state and focuses on directing users towards reduced-risk pesticide management. CDPR directs pesticide product evaluation and registration as well as commercial applicator licensing, mill fees assessed to pesticide sales, health impact evaluation, enforcement, and many other functions within the California pesticide industry. CDPR oversees pesticide applications across the largest agricultural producing state in the country, with more than $20 billion in exports and more than $50 billion in total farm and ranch revenue per year.
  • Treated seeds became popular in the 1990s and have increased in use since then, with upwards of 80% of all corn in the U.S. now grown using pesticide-treated seeds. Pesticide treated seeds are exempted from review under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) as “treated articles” (see an additional AgencyIQ analysis on treated seeds here). In addition, CDPR does not regulate seeds that are treated to protect the seed, as they do not fall under the state’s definition of pesticide.
  • However, seed treatment products must be registered with the Environmental Protection Agency (EPA) and CDPR if the coating process is conducted in California. As of October 2021, CDPR’s product/label database contains 210 active products coded for “coating,” with five products listed as active ingredients for seed treatments only (sedaxane, penflufen, ethaboxam, salicylic acid, and 2-Cyclopenten-1-one, 3-methyl-2-(2Z)-2-pentenyl-). Most seed treatment types in California are fungicides, followed by bactericides or insecticides.


  • On February 15, 2023, the Natural Resources Defense Council (NRDC), Center for Biological Diversity (CBD), and several other environmentalist groups (collectively, the Petitioners) petitioned CDPR in California courts over a “failure to comply with their duties under California’s Administrative Procedure Act (APA) . . . when developing a policy that allows one of the largest sources of pesticide contamination in California to go unregulated under state law.” The Petitioners allege that CDPR is shirking its duties by not regulating pesticide treated seeds, despite the California legislature’s charge for CDPR to take whatever steps it deems necessary to protect the environment.
  • The petition argues that DPR has maintained a policy that treated seeds are not pesticides subject to regulation but did not give notice to the public of this policy, allow for a note and comment period on the policy, or otherwise “comply with the requirements of the APA.” The petition concludes that DPR retaining the policy is an “underground regulation” in violation of the APA.
  • The petition then focuses on the use of neonicotinoids, a group of insecticides, for pesticide treated seeds. About 90% of the neonicotinoid used on the pesticide is not absorbed by the target plant, leaving the rest in the surrounding soil. The petition notes that neonicotinoid treated areas have seen the insecticide migrate to wild plants, fields with no history of neonicotinoid use, and water supplies. In addition, NRDC highlights the effects of neonicotinoids on both bees as well as potential effects on humans, birds, and other species.
  • On September 23, 2020, NRDC petitioned CDPR to regulate seeds treated with neonicotinoids and other systemic insecticides. CDPR denied this petition on October 23, 2020, and NRDC filed a request for reconsideration on December 22, 2020. This request was also denied, with CDPR stating that it determines on a “case-by-case basis, whether any given product or substance is a ‘pesticide’ requiring registration.” Additionally, NRDC filed a Public Records Act request for CDPR policies or opinions on whether treated seeds must be registered or otherwise regulated.
  • The petition then focuses on its “underground regulation” argument, asserting that CDPR created its treated seeds policy without following California APA requirements, therefore rendering that policy invalid. An “underground regulation” is defined by the complaint as one that has regulatory “teeth” but has not been adopted via a standard method and filed with the California Secretary of State. California courts use a two-part test for determining whether an action is a “regulation” subject to California APA requirements: (1) the action must be intended to apply generally, rather than to a specific case; and (2) the action must implement or interpret the law administered by the agency or govern agency procedure.
  • The Petitioners argue that CDPR’s policy is a regulation within the meaning of the APA test as it determines whether a specific class of items (the seeds) are considered pesticides and therefore applies generally, rather than specifically. In addition, the Petitioners assert that the rule interprets the statutory definition of “pesticide,” which does not specifically mention treated seeds.
  • The petition requests that the court issue a writ of mandate to compel CDPR to comply with its duties under the California APA and utilize APA procedures when issuing policy or regulations relating to treated seeds. In addition, the petition requests that the court declare the current treated seeds policy invalid and permanently stop CDPR from maintaining the current policy.

Next steps

  • The State has 30 days after the complaint is filed to produce an answer or an objection to the complaint. In many cases, the state may request an extension to reply to the complaint, which will normally be given.
  • Treated seeds is a bit tricky for the EPA and CDPR. Although the EPA regulates the seeds somewhat, it does allow for the treated article exemption, and CDPR specifically does not regulate the seeds. However, this could be changing in the coming years. In a response to a petition to the EPA, the Agency stated that it would review regulating treated seeds under FIFRA Section 3(a). In addition, California’s new Sustainable Pest Management (SPM) Program may change CDPR’s regulation strategy for treated seeds. The program seeks to eliminate high-risk pesticide use in the state by 2050, and that may come with additional regulation on treated seeds (see additional AgencyIQ analysis on the SPM program here).

To contact the author of this analysis, please email Walker Livingston.
To contact the editor of this analysis, please email Patricia Iscaro.

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