EPA’s Emergency Ban on DCPA: What Legal Professionals Need to Know

On August 6, 2024, the U.S. Environmental Protection Agency (EPA) announced an emergency registration suspension for the pesticide dimethyl tetrachloroterephthalate, also known as DCPA or Dacthal), citing severe risks to unborn children whose mothers are exposed, often unknowingly, to the chemical.

In doing so, the EPA exercised its emergency ban powers under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for the first time in nearly forty years.

Background: DCPA and Its Uses

DCPA is a pesticide used to control weeds in agricultural and other settings. It is frequently used on crops like broccoli, Brussels sprouts, cabbage, and onions.

DCPA is manufactured by AMVAC Chemical Corporation.

Health Risks Associated with DCPA

DCPA is currently undergoing registration review. Registration review of pesticides and related substances occurs every 15 years. During this process, EPA experts examine scientific data and other sources to ensure that registered pesticides do not cause unreasonable adverse effects on human health.

Chief among these is the risk of injury to the thyroid, a gland that produces and controls hormone levels in the body. EPA assessments and related data demonstrate serious risks to thyroid health in adults, children, and infants. They also show risks to developing babies when a pregnant person is exposed to DCPA.

DCPA can change fetal thyroid hormone levels. Changes in these levels can result in low birth weight, which is linked to a host of negative health outcomes. Changes in thyroid levels in utero can also lead to impaired brain and motor skill development later in life.

In 2023, EPA studies found that health risks persist with DCPA use and application, even when workers wear personal protective equipment and implement engineering controls. According to the agency, some pregnant workers handling DCPA have been exposed to levels up to 20 times greater than the EPA’s estimated safe level for unborn children.

EPA also found that certain safeguards around DCPA use weren’t sufficient to protect human health. For instance, DCPA labels warn that entry into a treated space should be restricted for 12 hours following application. EPA studies, however, found that the dangers of DCPA exposure persist for up to 25 days following application. Spray drift can also affect workers in neighboring fields, who may not even realize they’ve been exposed to DCPA.

Since the 2023 EPA assessment, AMVAC has suggested several changes to DCPA’s registration, including an elimination of registration for its use on turf. However, the EPA notes that these changes don’t address the serious health risks faced by people who work with and around DCPA.

Legal Authority for the DCPA Ban

EPA has the authority under FIFRA to suspend or cancel use of a pesticide. To do so, however, EPA must gather evidence backing its actions. Meeting the procedural requirements of FIFRA can take several months or years. EPA can also seek suspension of a product while cancellation procedures are occurring if the agency determines suspension is necessary to prevent imminent hazard.

In 2013, EPA issued a Data Call-In (DCI) to AMVAC Chemical Corporation. The DCI required AMVAC to submit more than 20 studies related to DCPA’s effects on humans, including studies of its effects on thyroid development and function in adults, children, and developing fetuses.

Information required under the DCI was due by January 2016. However, AMVAC failed to submit a thyroid study. Upon review, the EPA determined that several studies AMVAC did submit between 2013 and 2021 were insufficient to meet the DCI’s requirements.

AMVAC finally submitted a thyroid study in August 2022, after EPA issued a Notice of Intent to Suspend the use of DCPA based on the company’s failures to submit all the required information under the DCI. The EPA issued an emergency ban in August 2024, citing imminent health hazards due to the effects of DCPA on unborn babies’ developing thyroids.

Implications for Legal Professionals

AMVAC is the sole manufacturer of DCPA. For this reason, the company provides a single target for lawsuits related to the health effects of DCPA exposure.

The EPA has collected information on the health effects of DCPA for more than a decade. These studies and other data points can provide an essential basis for linking DCPA exposure to injuries to children and adults. For many cases, the challenge may be to show that a pregnant parent was exposed to DCPA, as spray drift and other factors can result in exposure without a person becoming aware of the event.

Studies indicate that consumers can also be exposed to DCPA via grocery purchases. For instances, a study by the Environmental Working Group found that 60 percent of the kale they tested was positive for DCPA. A Consumer Reports study found consumers could be exposed to DCPA when purchasing Brussels sprouts or broccoli. Consumer exposures offer another potential avenue for personal injury claims.

Impacts on Agriculture and Public Health Policy

Suspension of DCPA use will require agricultural companies to find alternative treatments for crops. Yet the suspension may also protect many agricultural workers and their unborn children from serious or even permanent side effects. Meanwhile, lawsuits will likely focus on linking thyroid and other health issues to DCPA exposure, whether in the fields or on one’s plate.