Defra’s Molluscicide Ban Overturned by High Court – An Update

In January 2018, we reported that the Department for Environment, Food & Rural Affairs (Defra) had instigated a phased ban of ‘outside use’ of mollusc (snail and slug) killer in the UK, where metaldehyde is the active ingredient.

The Executive’s intervention sought to prohibit (i) product sale from 30 June 2019 and (ii) use of existing stock 12-months thereafter.[i]

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[Source: Wikimedia Commons – Chatsam (17 May 2012) ‘Granulé de limacide à base de Métaldéhyde’]

Although product withdrawal was intended to protect against an ‘unacceptable risk’ to the welfare of ‘birds and mammals’, we used Defra’s announcement as an opportunity to investigate whether use of pellet pesticides poses a specific threat to human health – to find out more, read our article in edition 257 of BC Disease News (here).

Shortly after news of the ban was delivered, molluscicide manufacturer, Chiltern Farm Chemicals (CFC), started judicial review proceedings, in an attempt to reverse the Government’s decision.[ii]

Days before the matter fell before the High Court, the Government eventually conceded that its decision-making process had been ‘flawed’.

Accordingly, at the High Court hearing, on 30 July 2019, it was declared that the ban, issued by the former Secretary of State for Environment, Food and Rural Affairs, Michael Gove MP, was ‘unlawful’.[iii]

The legal basis underpinning Defra’s policy required the minister to form his own opinion on the impact of metaldehyde products on ‘non-target species’, but he did not do so.[iv]

Reacting to the Court ruling, Philip Tavener, of CFC, heralded a return to ‘business as usual’, following 8-months of market uncertainty.

Nevertheless, the successful legal challenge made no determination as to the underlying merits of the Government’s strategy. Thus, it cannot be said with certainty that the ban has been revoked indefinitely, as a spokesperson for Defra explained:

‘We will retake the decision as swiftly as possible, taking account of the procedural points raised. Our priority is to protect people and the environment, and all decisions on pesticides are always based on the best available science’.

Applications for renewed authorisation of metaldehyde-containing products, made pursuant to Article 43 of EC Regulation 1107/2009, therefore remain outstanding, and will be considered afresh, in due course. This much is confirmed by the High Court’s order.[v]

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Should Defra seek to withdraw or amend existing authorisations again, this time under the stewardship of acting Secretary of State, the Rt Hon. Theresa Villiers MP, it will do so in accordance with Article 46 of the Regulation, which triggers a period of grace for the disposal, storage, placing on the market and use of existing stock.

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The official register of authorised Plant Protection Products can be accessed here. [vi]

How did market players, with a vested interest in agriculture, react to the overturned ban?

James Campbell, Chief Executive of Garden Organic and advocate of metaldehyde alternative, ferric phosphate, stated:

‘We hope this is a purely an administrative error on behalf of the government, and we will be urging them to reinstate the ban as soon as possible’.[vii]

Echoing this outlook, Craig Bennett, Chief Executive of Friends of the Earth, voiced his ‘disappointment’ that the decision was fundamentally based ‘on a technicality’.[viii]

Meanwhile, a petition,[ix] calling for the Government to reinstate the metaldehyde ban, was rejected in light of a pre-existing, albeit indirect and less formal petition, entitled: ‘Ban on slug pellets that are unnecessarily killing hedgehogs’. The active petition deadline is 22 January 2020 and less than 5,000 signatures have been obtained thus far.[x]

On the other side of the debate, Vice President of the National Farmers Union of Scotland (NFUS), Charlie Adam, commended the outcome of the judicial review proceedings as ‘welcome news’:

‘Retaining metaldehyde provides farmers with a trusted treatment that, when used properly, is reliable and effective. The targeted nature of metaldehyde allows farmers to use the product against slugs, the arable sector’s most destructive pest, when they are identified without the need to use it as a preventive measure’.[xi]

 

[i] The Rt Hon Michael Gove MP, ‘Restrictions on the use of metaldehyde to protect wildlife’ (19 December 2018 GOV.UK) <https://www.gov.uk/government/news/restrictions-on-the-use-of-metaldehyde-to-protect-wildlife> accessed 21 December 2018.

[ii] ‘Chiltern challenges Defra over metaldehyde’ (25 June 2019 Agri-Trade News) <https://agritradenews.co.uk/news/2019/06/25/chiltern-challenges-defra-over-metaldehyde/> accessed 28 October 2019.

[iii] David Jones, ‘Metaldehyde slug pellet ban overturned after legal challenge’ (30 July 2019 Farmers Weekly) <https://www.fwi.co.uk/arable/crop-management/pests/metaldehyde-slug-pellet-ban-overturned-after-legal-challenge> accessed 28 October 2019.

[iv] Alice Dyer, ‘Metaldehyde slug pellet ban overturned following legal challenge’ (31 July 2019 Farmers Guardian) <https://www.fginsight.com/news/news/metaldehyde-slug-pellet-ban-overturned-following-legal-challenge-90522> accessed 28 October 2019. 

[v] Kelly Henaughen, ‘Metaldehyde ban overturned’ (1 August 2019 The Scottish Farmer) <https://www.thescottishfarmer.co.uk/news/17807406.metaldehyde-ban-overturned/> accessed 28 October 2019. 

[vi] <http://ec.europa.eu/food/audits-analysis/act_getPDF.cfm?PDF_ID=13131> accessed 31 October 2019.

[vii] ‘Metaldehyde slug pellets - ban overturned’ (1 August 2019 Garden Organic) <https://www.gardenorganic.org.uk/news/metaldehyde-slug-pellets-ban-overturned> accessed 28 October 2019. 

[viii] Simon Pickstone, ‘DEFRA to reconsider future use of metaldehyde after legal challenge’ (31 July 2019 ENDS Report) <https://www.endsreport.com/article/1592611/defra-reconsider-future-use-metaldehyde-legal-challenge> accessed 28 October 2019.

[ix] ‘We call on DEFRA, to reinstate the ban on the use of metaldehyde slug pellets’ (31 July 2019 Parliament.UK) <https://petition.parliament.uk/petitions/268822> accessed 1 November 2019.

[x] ‘Ban on slug pellets that are unnecessarily killing hedgehogs’ (Parliament.UK) <https://petition.parliament.uk/petitions/266211> accessed 1 November 2019.

[xi] Bob Carruth, ‘High Court Ruling on Metaldehyde Must See Science-Based Decision Process Adopted’ (31 July 2019 NFU Scotland) <https://www.nfus.org.uk/news/news/high-court-ruling-on-metaldehyde-must-see-science-based-decision-process-adopted> accessed 28 October 2019.