Canadian Press

NAFTA challenge won’t stop Ont. from going ahead with pesticide ban: minister

28 October 2008

TORONTO - Ontario won’t back down from its plan to prohibit the cosmetic use and sale of weed killer 2,4-D despite a NAFTA challenge to Quebec’s pesticide ban, Ontario’s environment minister said Tuesday.

"The NAFTA challenge in and of itself - or potential NAFTA challenge - won’t have any effect on whether we think we’re doing the right thing," said Environment Minister John Gerretsen.

"It’s all about protecting kids playing in their own yards or other properties."

Dow AgroSciences, a unit of Dow Chemical that manufactures 2,4-D, filed a $2-million notice of action against the federal government in August.

The company alleges that Quebec’s ban on 2,4-D violates Canada’s obligations under NAFTA because it prohibits a product without any scientific basis.

Dow bases its claim, in part, on a Health Canada ruling this year that found 2,4-D can be used safely according to label directions.

Environmental and health groups that support Ontario and Quebec’s pesticide bans dispute Dow’s claim, saying studies have linked 2,4-D to serious illnesses like cancer.

But the company won’t say whether it plans to go after Ontario’s pesticide ban as well.

"At this time, we’re not speculating on any further action we might take in the future," said Brenda Harris, regulatory and government affairs manager for Dow AgroSciences Canada Inc.

Ontario has passed legislation that allows it to ban the sale and use of pesticides with few exceptions, such as golf courses and for agricultural purposes.

However, a proposed list of substances that could fall under the ban - including 2,4-D - has not yet been passed into law.

Those regulations should be posted within the next week or so for public consultation, Gerretsen said.

Changes could still be made to the regulations before the list is passed on to cabinet for final approval.

But Gerretsen said he has no intention of removing 2,4-D from the list.

"We’re convinced that the items that we’re putting on the list are the right ingredients and right products," he said.

"We think we’re doing the right thing, and we won’t be dissuaded by a potential NAFTA challenge."

A government official said the company voiced its concerns about 2,4-D being included in the list during a Sept. 12 meeting with the ministry.

Dow AgroSciences has said that Quebec’s ban went into force in April 2006 "despite numerous attempts" by the company to work with the government.

It claims Quebec’s actions open the door to making public policy without scientific criteria, contrary to the free trade agreement.

Under Chapter 11 of the North American Free Trade Agreement, investors in a NAFTA country can sue the government of another NAFTA country for actions they believe hurt them or their investments.

Chapter 11 also circumvents local courts and puts the case in front of an international tribunal.

Dow’s notice of intent does not start the case, but signals it could go ahead after the expiry of the 90-day notice period.