A federal appeals court has reversed the Environmental Protection Agency’s (EPA) 2021 ban on all uses of chlorpyrifos on food crops that was issued following an order from the 9^th U.S. Circuit Court of Appeals. Instead of a complete ban, the 8^th Circuit Court of Appeals in St. Louis ruled that the EPA could have implemented a partial ban.

Chlorpyrifos was used on a wide variety of crops including apples, oranges, strawberries, corn, wheat, citrus, and other foods that are consumed daily. According to the EPA, the chemical “has been found to inhibit an enzyme, which leads to neurotoxicity, and has also been associated with potential neurodevelopmental effects in children.” The 1996 Food Quality Protection Act (FQPA) — passed unanimously in Congress — requires EPA to protect children from unsafe exposures to pesticides. The FQPA requires EPA to ensure with reasonable certainty that “no harm will result to infants and children from aggregate exposure” to pesticides. EPA cannot take industry costs into consideration when protecting children from harmful pesticides, because FQPA is a health-based standard. There has been an ongoing legal battle concerning the continued use of this compound.

Required to act by a 9th Circuit Court of Appeals decision in April 2021, EPA issued a final rule in August 2021— that went into full effect February 28, 2022—stating that “EPA is unable to conclude that the risk from aggregate exposure from the use of chlorpyrifos meets the safety standard of the Federal Food, Drug, and Cosmetic Act (FFDCA). Accordingly, EPA is revoking all tolerances for chlorpyrifos.” On November 2, 2023, the 8th Circuit U.S. Court of Appeals decided to vacate EPA’s 2021 decision to cancel all food tolerances for chlorpyrifos and sent it back to the agency.

The recent ruling says EPA “remains free to exercise its discretion as long as it considers all “important aspect[s] of the problem” and gives a reasoned explanation for whichever option it chooses.