Controlling Hazardous Trade: 
the potential of Prior Informed Consent

Global trade in pesticide products is valued at US$27 billion a year. While most trade is between industrial countries, sales to the South have been expanding rapidly, particularly in Latin America and Asia. Governments in the South lack the resources for effective monitoring, regulating and promoting safe use, and frequently lack information about regulatory controls in other countries. In 1985, the UN Food and Agriculture Organisation (FAO) adopted an International Code of Conduct on the Distribution and Use of Pesticides (FAO Code), and in 1989 it amended the Code to incorporate the principle of Prior Informed Consent (PIC) to give governments the right to prohibit certain hazardous imports. Can the PIC process effectively regulate hazardous pesticide trade? By Barbara Dinham.

Efforts to stop the manufacture of hazardous pesticides are dismissed as impractical by governments and industry. It is argued that governments informed of the hazards can make decisions on whether to allow imports.      

    There are two provisions in the FAO Code aimed at making information on hazardous pesticides more freely available. The ‘Information Exchange’ provision suggests that when pesticides are exported from a country which has banned, or severely restricted a pesticide, the importer should be notified of its shipment. However, many developing country governments and public interest groups argued that importing governments must, at a minimum, give explicit consent to the import of a hazardous pesticide before shipment. This principle, known as Prior Informed Consent (PIC), was finally accepted by FAO member states and incorporated into the  FAO Code in 1989.
    Under the PIC procedure, countries—particularly developing countries—can assess the risks associated with certain hazardous pesticides and register a prohibition on their import. The FAO Code states that:

Pesticides that are banned or severely restricted for reasons of health or the environment are subject to the Prior Informed Consent procedure. No pesticide in these categories should be exported to an importing country participating in the PIC procedure contrary to that country’s decision made in accordance with the FAO operational procedures for PIC(1).

    PIC was also adopted by the UN Environment Programme (UNEP)(2) for other chemicals and the two agencies have implemented the process jointly. Within UNEP, the International Register for Potentially Toxic Chemicals (IRPTC) implements PIC and has been developing the data base essential to make the procedure work. The data base, which is now ready to receive information, will indicate when a pesticide qualifies, and keep a register of the import decisions taken by all participating governments.

    To ensure that PIC is implemented according to the criteria agreed by the member states of FAO and UNEP, an expert group (the FAO/UNEP Joint Group of Experts on Prior Informed Consent) was established to develop and guide the process. Experts are invited in their individual capacity, but are generally drawn from government regulatory agencies with a good knowledge of the problems in their country. The current composition of the expert group has a majority from the South and a relatively equal gender balance. Observers attend from industry and public interest groups. The expert group meets approximately every nine months, and at their most recent meeting in July, reviewed progress.

The structure of PIC

Governments participating in the PIC scheme must appoint a Designated National Authority (DNA) as the contact point to communicate with the secretariats in the FAO and UNEP; to date 115 countries have done so.

    When a pesticide meets the criteria for PIC, a Decision Guidance Document (DGD) is prepared to provide governments with key information and the reasons for the reported control action. Before circulation, each DGD must be peer reviewed by scientists, a number of NGOs and industry, then translated into English, French and Spanish. To date, it has taken over a year to prepare a DGD. 

    Governments are asked to inform FAO of their decision to prohibit or consent to import of the pesticide within three months. All decisions are recorded in a data base maintained by the IRPTC. Participating governments are regularly provided with information on the status of all pesticides in the PIC process and are required to inform their export and import  industry of country decisions.

    Industry has agreed to abide by the FAO Code and the PIC process, and therefore should theoretically be able to keep informed of decisions through GIFAP, the International Group of National Associations of Manufacturers of Agrochemical Products.

Which pesticides are included?

To qualify for inclusion in the PIC procedures, a ban, severe restriction, or withdrawal from use of a pesticide must be clearly based on health or environmental reasons. It must be a final government regulatory action, the pesticide must already be in use in the country, and the action must apply to a major use. In that case, a pesticide will be included if:

• it is banned, severely restricted or withdrawn from use for health or environmental reasons in five or more countries; or

• it is banned, severely restricted or withdrawn from use for health or environmental reasons by any country after 1 January 1992.

The agreement to limit the initial list to pesticides banned, severely restricted or withdrawn from use in five more countries was intended to prevent the process from being overwhelmed at the outset. At some point in the future, pesticides banned in one-to-four countries before January 1992 will also be included.

    A pesticide is not formally in the PIC process until a DGD has been circulated to DNAs. 

First pesticides in the process

Implementation of the whole procedure has been slow but the first 12 pesticides have been circulated to DNAs for an import decision. By February 1993, 55 governments had responded to the first six DGDs: aldrin, DDT, dieldrin, dinoseb and dinoseb salts, fluoroacetamide and HCH (mixed isomers).

    The current status of PIC pesticides is shown in the table. Governments have been asked to provide inventories of banned and severely restricted pesticides, and as these decisions are collated, more pesticides should be shown to qualify. For pesticides banned but no longer produced or used, the names only will be circulated to governments and if found to be still traded they will be included.

    Pesticides for which other legal processes need to be taken into account, such as methyl bromide, which has been listed as an ozone-depleting substance under the Montreal Protocol, will not be included in PIC as these will require different legal obligations from those in PIC.

Are the right pesticides in PIC?

Many public interest groups were critical of the initial criteria, pointing out that the pesticides included were no longer in widespread use, and as they tended to be banned for environmental persistence, were not necessarily the compounds causing the worst health problems under conditions of use in developing countries. The Pesticides Action Network (PAN) presented evidence of some problem pesticides(3).

    It has proved difficult to establish guidelines for evaluating pesticides causing health problems under conditions of use, but the expert group agreed that some pesticides cause risk which cannot be validated in accordance with scientifically-accepted procedures. The group agreed these must be included, as the original intention of PIC was to help prevent pesticide hazards in developing countries(4). To date, a number of criteria for assessing these problem pesticides, have been established, including if:

• its active ingredient is in the WHO Class Ia (extremely hazardous) list of pesticides, and its typical formulations also fall  into WHO Class Ia;

• it is a pesticide formulation causing significant problems under conditions of use in developing countries, which appears in official reports of international organisations or governmental agencies or for which detailed documentation from other sources is available.

In spite of the difficulties, a number of pesticide formulations have been identified for inclusion:  but are not formally in the procedure until their DGD has been prepared and circulated.

Using the Code

Many NGOs are determined to use the voluntary FAO Code to address pesticide-related problems to the fullest extent. As FAO provides no funds for monitoring, NGOs have done so through their own efforts, and have applied pressure through publications and journal articles, as well as through questions to their governments and international lobbying. PAN groups have continued to monitor the Code.  Public interest groups want to see evidence of PIC's success  in restricting the availability of hazardous pesticides and promoting both safer practices and non-chemical alternatives(5).

    As governments will regularly receive updated information on PIC pesticides, they will become more aware of positions adopted by other governments. The PIC process should improve the circulation of information about hazardous pesticides and help make this information accessible to NGOs as well as to governments. It may also help promote the information-exchange functions of IRPTC which operate for a large range of pesticides.

Limits to PIC

There are clear limits on the potential for PIC to address problems of hazardous exports. PIC is not a recommendation to ban or severely restrict a pesticide. It is primarily an information tool, intended to alert governments to hazardous pesticides. Nevertheless, it does give governments a structure to prevent unwanted imports, as the major agrochemical corporations have agreed not to export contrary to a government decision.

    However, PIC does not address the root of the problem by preventing manufacture of hazardous pesticides. Nor can it prevent pesticides banned in a country from being exported. It places significant onus on the importing country to try to prevent unwanted imports, rather than requiring exporting countries to stop production of hazardous products.

    There are limits on the ability of the PIC system to identify hazardous exports. Export statistics do not track particular active ingredients, and generally only record exports of formulated products. Manufacturers may export  technical products in bulk for formulation elsewhere, thus avoiding the obligation to comply with a government’s ruling. For PIC to work effectively, all governments and manufacturers, must voluntarily comply  with the decision of all other governments. Yet there are a growing number of manufacturers in countries including China, Taiwan, India, Brazil that do not belong to the industry association GIFAP, who may feel little or no obligation to take the PIC process seriously.

Getting the best from PIC

Public interest groups working on pesticide issues need to consider what the PIC process means for them (see details of NGO Guide to PIC below). All pesticides in the PIC process have been proven to cause health or environmental problems: therefore, governments can be asked why they allow continued use of these chemicals. The PIC process will heighten awareness of the hazardous nature of pesticides, and the need to consider whether safety conditions can be met before permitting import. The PIC process can raise awareness of the hazards of pesticide use and play a part in reducing use worldwide. A wider agenda would suggest that NGOs analyse the extent of the use of PIC and other hazardous pesticides in their country, and promote a programme for non-chemical, sustainable alternatives.

References:

1. The International Code of Conduct on the Distribution and Use of Pesticides (as amended), Food and Agriculture Organisation of the United Nations, Rome, 1989.

2. The London Guidelines  on the Exchange of Information in International Trade, UNEP, 1989.

3. The groups' findings were published in the PAN International report, Missing Ingredients: Prior Informed Consent in the International Code of Conduct on the Distribution and Use of Pesticides (October 1989).

4. Minutes of Fifth FAO/UNEP joint meeting on PIC, Rome, 26-30 October 1992.

5. The results of the latest NGO survey of FAO Code violations were published in The Pesticide Hazard: A global health and environmental audit , The Pesticides Trust [now PAN UK], February 1993.

[This article first appeared in Pesticides News No.21,September 1993, pages 10-11]