Letter to Brazil regarding proposal to weaken protections from pesticides

Download Official Letter, including Annex and citations, here:  Open Letter to Brazil – Proposed Pesticide Law 13.06.18 (5.2018)

REFERENCE: OL BRA 5/2018

Excellency,

13 June 2018

We have the honor to address you in our capacities as Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment; Special Rapporteur on the right to food; Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes; Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and Special Rapporteur on the human rights to safe drinking water and sanitation, pursuant to Human Rights Council resolutions 37/8, 32/8, 36/15, 33/9 and 33/10.

In this connection, we would like to bring to the attention of your Excellency’s Government information we have received concerning the Project of Law (PL),6.299/2002 which amends Law No. 7.802 of 11 July 1989, which deals with the research, experimentation, production, packaging and labeling, transportation, storage, commercialization, commercial advertisement, use, import, export, final destination of wastes as well as packaging, registration, classification, control, inspection and inspection of pesticides.1 The referred amendments would significantly weaken the criteria for approving the experimental and commercial use of pesticides, posing threats to a number of human rights.

According to the information received:

The Project of Law 6.299/2002 amends articles 3 and 9 of Law No. 7,802 of July 11, 1989. The referred law project further incorporates several other bills presented (PL no 713/1999, 1.388/1999, 2.495/2000, 3.125/2000, 5.852/2001, 5.884/2005, 6.189/2005, 7.564/2006, 1.567/2011, 1.779/2011, 3.063/2011, 4.166/2012, 4.412/2012, 49/2015, 371/2015, 461/2015, 958/2015, 1.687/2015, 3.200/2015, 3.649/2015, 4.933/2016, 5.218/2016, 5.131/2016, 6.042/2016, 7.710/2017, 8.026/2017, 8.892/2017), fully revising the regulations for pesticides registration and their use in Brazil with the aim of making the framework more flexible, facilitating the registration and marketing of these products in the country.

A number of concerns are noted below regarding the proposed amendments to the existing legislation, which may loosen regulation and oversight of hazardous pesticides in Brazil.

The concerns listed below are heightened by consideration of the current state of pesticide use and regulation in Brazil, reportedly the largest consumer and importer of pesticides in the world. Public health data illustrates serious concerns. According to the data collected by the Ministry of Health, 5501 cases of intoxication were recorded in 2017 in Brazil (almost the double of what was recorded ten years before), an average of fifteen persons per day. According to the same source, 152 persons died in Brazil as a result of poisoning in 2017. These figures are likely an underestimation of adverse impacts to human health, given the limited data available on poisonings and the health impacts of chronic exposure to hazardous pesticides.

Concerns further exist with regard to the capacity of water suppliers across the territory in regularly monitoring the levels of contamination of water by pesticides. Only around 30% of the cities in Brazil regularly provide information on levels of contamination to the national entity monitoring water quality (SISAGUA).

It is further noted that five among the ten most frequently sold pesticides in Brazil (Atrazine, Acephate, Carbendazim, Paraquat and Imidacloprid) are reportedly not authorized in several countries as well as the European Union due to their risks to human health or ecosystems. Further, it is noted that the existing Brazilian standards permit higher levels of exposure to toxic pesticides than the equivalent standards, such as those in Europe. For example, it is reported that while the European Union limits in 0.1 milligrams per liter the maximum amount of glyphosate to be found in drinking water Brazil allegedly allows up to 5,000 times more.3

a) Concerns on the proposed institutional framework for pesticide registration, use and commercialization:

The proposed amendment of Art. 3 of Law No. 7,802 alters the institutional framework for approval and registration of new pesticides in Brazil. Currently, approval and registration requires the authorization from the federal authorities for health, environment and agriculture – the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA), the Brazilian Health Regulatory Agency (ANVISA) and the Ministry of Agriculture Livestock and Supply (Agriculture), respectively.

The amendment concentrates in the Ministry of Agriculture the mandate of registering pesticides in Brazil, while the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA), the Brazilian Health Regulatory Agency (ANVISA) homologate this decision. It is not specified what could happen in the case the health or environmental authorities disagree with the registering of a product.

Concerns exist that the overwhelming financial capacity of the agriculture lobby in Brazil would easily control decisions adopted with this new institutional arrangement.

The proposed institutional arrangements reduce the powers of the health and environmental authorities in the decision making process, raising serious questions of how evidence of hazard and risk will be evaluated in arriving at regulatory decisions.

The amendments establish a maximum period for the adoption of decisions on products registration. For example, 12 months for the decisions with regard to the registration of a new pesticide. Also opening the possibility of temporary registration in cases when analysis are not concluded by the authorities within the established timeframe.

The amendments establish the possibility for automatic temporary authorizations for products that are registered for similar crops in at least three member countries of the Organization for Economic Cooperation and Development (OECD) to take place without any supportive analysis to be made in Brazil.

Finally, the amendments proposed to Articles 9, 10, 11 concentrate all the authority in the establishment of restrictions and controls on pesticide registration and use in the federal government, eliminating the current recognition of the capacity of cities and states to propose standards of protection tailored to locally identified circumstances and challenges.

b) Concerns regarding the authorization and use of pesticides linked to cancer, birth defects and other adverse health outcomes, in particular for children

Article 3 of the existing law explicitly prohibits the registering of pesticides with elements considered to be teratogenic, carcinogenic, mutagenic, endocrine disruptive, or posing risks to the reproductive system. Many of these substances present incalculable risks to young children during sensitive periods of development. Under the proposed amendment, hazardous pesticides will only be prohibited from the use where “scientifically established unacceptable risk” is demonstrated. This approach rejects the application of good practices on the risk management of pesticides such as those in the European Union, in favor of an unspecified definition of “unacceptable risk” that deeply problematic bearing the reduced powers of health and environmental authorities under the new institutional arrangement.

Furthermore, lessons from other countries illustrate how standards based on the acceptability of risks fail to adequately protect those most at risk from exposure to toxic chemicals, such as low-income communities, minorities, workers, different genders and their children.

Moreover, the proposed amendments inject additional uncertainties that reduce the accuracy of risk assessments that may be conducted. Accordingly, permits for the use of pesticides may be obtained also for preventive purposes (before the occurrence of crop pests), increasing the uncertainties in the types and volumes of pesticides applied and the risk of exposure for workers and local communities.

c) Concerns regarding gaps in the proposed regulatory framework for pesticides

The amendments proposed would limit the application of the Law No. 7,802 regulating pesticides only to the rural environment. This would mean that urban and industrial environments would be either uncovered or regulated only by the health surveillance law, Law 6,360 / 76, which is outdated and has no specific clauses on the registration and use of pesticides, including protective measures.

d) Concerns on import and export of prohibited or banned pesticides

Brazil reportedly continues to permit foreign chemical manufacturers to exploit lower standards of protection in the country, exporting hazardous pesticides prohibited from use in their domestic markets to be used in Brazil. Many of these countries from which these banned pesticides are exported have stricter health and environmental protection systems in place than Brazil. Several countries have prohibited such practices, mindful of the inequities created for local communities and workers.

Furthermore, current norms do not provide any guidance on the exportation of pesticides produced in Brazil. The amendments proposed establish that requirements of agronomic, toxicological and environmental studies for the production of pesticides are not required if these are produced with the sole purpose of exportation. This is of considerable concern where pesticides are exported to countries without adequate risk reduction systems for pesticides.

e) Additional contextual concerns

The Brazilian Government reportedly continues to stimulate the use of pesticides through financial incentives. Experiences from other countries have illustrated the benefits of financial incentives for minimizing the use of hazardous pesticides and other toxic chemicals. Decree 7.660 of December 23, 2011 established the total exemption of Tax on Industrialized Products for the production and sale of pesticides and the Agreement 100/97 do National Council of Economic Policy (Confaz) that reduces in 60% the basis used for calculating the Tax on the Circulation of Goods and Services for agriculture inputs, including pesticides.

Furthermore it is noted that an alternative law project – PL6670 / 2016, establishing a National Policy for Pesticide Reduction (PNARA), proposed two years ago by civil society and academic organizations received a lower level of priority by the Federal Congress. A commission to analyze this proposal was only established on 23 May 2018.

In light of all of the above and without prejudicing the accuracy of the allegations, we are concerned that the multiple changes proposed to the existing legal and institutional framework for pesticides in Brazil would significantly weaken protection mechanisms that are vital to guarantee the human rights of agriculture workers, of the communities living around areas where pesticides are used and of the population consuming food produced with the support of these chemical products.

In connection with the above alleged facts and concerns, please refer to the Annex on Reference to international human rights law attached to this letter which cites international human rights instruments and standards relevant to these allegations.

We are very concerned by the evident weakening of the role of public health and environmental authorities in the decision making process on the authorization of the use and commercialization of highly toxic products resulting from the proposed institutional framework. Equally the new norms unduly imposes the priority of compliance with unreasonably short deadlines in the authorization of products, clearly privileging the commercial interest of the industry over the protection of the rights of people to health and life.

We also express concern on the continued import by Brazil of products banned in their region of production due to the detection of significant health or environmental risks. Equally, the exclusion by the new norm of any requirement with regard to the potential toxicological and environmental impact of substances produced for exportation widens the space for the introduction of highly hazardous substances in Brazil. This new window is also clearly incompatible with Brazil’s obligations to ensure that locally based enterprises do not engage in conduct that is alleged to violate or harm the enjoyment of human rights abroad.

Moreover, we are concerned by the weakening of the oversight on the toxicity of pesticides will also undermine public access to information on pesticides. This is also incompatible with the duty of the Government to ensure wide access to information on the direct threats these products pose to the health of workers, their families and communities, as well as necessary protective and precautionary measures.

Finally, the proposed amendments are especially worrying considering the very high consumption of toxic pesticides in Brazil and the consequent public health impact of the population. The increased use of pesticides can also directly affect the safety and quality of the water, the food produced. In this regard, we also express our alarm at the continued support of the Government for the dissemination and use of pesticides in Brazil through the promotion of tax exemptions. It is also difficult to understand the limited attention given to alternative legislative proposals aiming at promoting the reduction of the levels of exposure to toxics.

It is our responsibility under the mandates provided to us by the Human Rights Council to clarify all cases brought to our attention. Therefore, we would welcome any additional information or clarification from the your Excellency’s Government with respect to the proposal under discussion and on measures taken to ensure that it complies with the Brazil’s obligations under international human rights law, particularly with respect to the rights to an adequate standard of living and the right to the highest attainable standard of health. We would also welcome the opportunity to discuss the proposal in more detail with Government officials at their convenience.

We intend to publicly express our concerns through a press release to be disseminated in the near future as, in our view, the amendment proposals potential impact in human rights warrants immediate public attention. The press release will indicate that we have been in contact with your Excellency’s Government’s to clarify the issue/s in question.

Finally, we would like to inform your Government that this joint communication will be made available to the public and posted on the website page for the mandate of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes: (http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex .aspx ).

Your Government’s response will also be made available on the same website as well as in the regular periodic Communications Report to be presented to the Human Rights council.

Please accept, Excellency, the assurances of our highest consideration.