Over the past decade, the European Union has been tightening its regulatory grip on neonicotinoid insecticides in response to an increasingly strong body of research suggesting they are lethal for pollinators such as bees.
But four neonicotinoid insecticides the EU has banned are still being used in the region thanks to a legal loophole.
In May 2013, the European Commission (the EU’s executive branch) banned the use of three neonicotinoids—imidacloprid, thiamethoxam and clothianidin—on flowering crops attractive to pollinators as well as cereals. In May 2018, it went further and banned all outdoor uses of the trio, and in February 2020, it decided not to renew the approval of a fourth neonicotinoid called thiacloprid, resulting in its de facto ban.
These restrictions have even led the German chemical giant Bayer to withdraw or let expire the registration of its neonicotinoid products for the EU and UK markets, deeming there to be “no longer a viable business case” for them in the region. It maintains its products are safe if used appropriately and continues to sell them elsewhere, but all mention of the company’s imidacloprid, clothianidin or thiacloprid products has been removed from its UK and EU websites. But neonicotinoids are still being used in Europe and so are those made by Bayer.
This is because EU regulation on pesticides has built-in wriggle room. Article 53 of the regulation gives EU member states the right to grant what is called an emergency derogation. This lets member states temporarily authorize banned products for a period of up to 120 days if “such a measure appears necessary because of a danger which cannot be contained by any other reasonable means.”
For some, Article 53 provides essential flexibility when faced with difficult weather conditions and pest outbreaks. For others, it is simply a legal loophole used to keep outlawed chemicals in European fields.
More than 200 derogations granted
An analysis conducted by Modern Farmer of publicly available data found a total of 205 such emergency derogations have been granted across member states for the four banned neonicotinoids since 2016: 41 for imidacloprid, 80 for thiamethoxam, 62 for clothianidin and 22 for thiacloprid. These national-level allowances cover different periods, crops and conditions for use as well as brands from the likes of Bayer, Syngenta and Nufarm.
In some countries, the repeated issuance of derogations means the neonicotinoids have, to a certain extent, remained in use every year since their apparent ban. According to the EU’s database, Romania granted 11 derogations for imidacloprid and nine for clothianidin products since 2016, as well as eight for thiamethoxam since 2017. Belgium has issued a total of 23 derogations for thiamethoxam, imidacloprid and clothianidin since 2018.
In Denmark, seven emergency derogations for the use of imidacloprid were granted in 2019, 2020 and 2021. This includes authorizations of its use on sugar beets but also one in 2019 for the use of Bayer’s imidacloprid product, Merit Turf, to protect golf courses from a type of grass-eating beetle. The country has also granted a total of eight derogations for thiamethoxam and clothianidin since 2016.
Hungary is by far the member state that has issued the most neonicotinoid derogations over the years, according to the EU database, granting a total of 39 for imidacloprid, thiamethoxam and clothianidin since 2016 for crops including sugar beet, sunflowers, rapeseed and poppies. However, it has not granted any further derogations for these chemicals since 2019.
Alexander Hennig, a spokesperson for Bayer, tells Modern Farmer that, while the company’s neonicotinoid products were no longer registered or being advertised for sale in the UK or EU, they could still be used through the derogation process. “[I]f a third party (e.g. an association) requested an emergency derogation which is compliant with the conditions of Article 53, and the respective member states granted this derogation, Bayer would support farmers and would try to deliver the relevant products, if possible,” he says. “So […] they aren’t available for sale in the EU or UK as such, but [they] can be used if an application for a derogation is granted.”
EU authority examining 23 derogations
The repeated use of these emergency measures has not gone unnoticed by the EU. Last year, there was a flurry of authorizations for their use against green aphids and the virus yellows disease of which the insects are vectors in sugar beets. Governments and conventional farming unions have said exceptionally mild winters have led to outbreaks no other substances can tackle. France, for example, has said beet production reported in November 2020 was nearly 30 percent lower than in 2019.
The Commission has asked the European Food Safety Authority (EFSA) to assess 23 derogations granted for the four banned neonicotinoids by 10 countries: Austria, Belgium, Croatia, Denmark, Spain, Finland, Lithuania, Poland, Romania and Slovakia.
It said 12 of the EU’s 27 member states had granted neonicotinoid derogations for sugar beet in 2020, but these 10 countries had done so repeatedly over the years. EFSA will assess whether each derogation was justified based on whether effective alternatives were available.
This is the second time the Commission has asked EFSA to evaluate the use of derogations for neonicotinoids. In 2017, EFSA was asked to assess those granted by seven member states: Bulgaria, Estonia, Finland, Hungary, Latvia, Lithuania and Romania.
EFSA concluded that most of the derogations granted were justifiable due to a lack of effective alternatives. However, its conclusions also resulted in the Commission stripping Romania of its right to grant further derogations for products containing imidacloprid or clothianidin against flea beetles on Brassica napus and Lithuania for thiamethoxam against flea beetles on spring rape, because, in these cases, alternative treatments were available.
The Finnish Ministry of Agriculture and Forestry tells Modern Farmer that it was confident EFSA would again conclude Finland’s derogations were justified. The relevant ministries for Romania and Lithuania, also being assessed for a second time, did not respond to requests for comment.
Mitigating risks to pollinators
While countries do not need the Commission’s prior approval to grant these derogations, they must notify it of their decision. The level of detail provided in these notifications varies greatly. Some countries outline planned mitigation measures and efforts made to find alternatives, while others are lighter. In Austria’s 2020 notification for the emergency authorization of Bayer’s thiacloprid product sold under the brand name Sonido, the country simply states in the section on mitigation measures: “To avoid risks to human[s] and the environment, comply with the instructions for use.”
Yet there is disagreement about what these risks to the environment are. While neonicotinoids can be sprayed on crop fields, more often than not, seeds are enrobed with the chemicals, which then grow into “neonicotinoid-infused” plants. Unlike contact pesticides that sit on the surface of leaves, neonicotinoids are systemic and get into the whole plant from its leaves to its flowers, roots and nectar. Neonicotinoids are designed to affect the central nervous systems of pests so that when “sucker” insects such as aphids latch on to crops, they are paralyzed, drop off and die. Research has shown that pollinators visiting treated crops can suffer the same fate. There is also increasing evidence that the substances can remain in the soil and water and come back, even years after application, through weeds, wildflowers and other crops grown subsequently on the same or surrounding parcels of land.
Manufacturers of the chemicals, conventional farming unions and governments have said these risks can be eradicated by only using them on seeds of crops harvested before flowering (such as beet sugar), reducing dust when sowing and making sure treated crops are not rotated with those harvested after flowering (such as rapeseed).
Bayer spokesperson Hennig says the risk to pollinators through flowering weeds was low in part because weeds would have to “survive or escape herbicide treatment,” grow near enough to the treated crops and absorb a certain amount of residue from the soil.
The Finnish Ministry of Agriculture and Forestry also says that weed control meant there was no risk for bees through stray flowers.
The search for alternatives
The justification for these derogations largely focuses on whether alternative products are available, and many EU countries have invested heavily in efforts to find them. Tove Jern, a senior officer for the Finnish Ministry, says the Finnish government had not granted any neonicotinoid derogations for rapeseed since 2019 and had turned instead to an alternative product, Bayer’s BUTEO start 480 FS, which contains flupyradifurone.
“A derogation is always accompanied by some kind of a plan on how to find a better alternative solution for the plant protection problem in question. Sometimes, the plan works quickly and, sometimes, it takes a longer time to find an alternative,” he says.
French organic farmers have expressed frustration about this focus on chemical alternatives. A collective of organic producers of beet sugar in the North of France, Bio en Hauts-de-France, claimed last year not to have experienced the same problem with aphids and virus yellows disease as conventional farms. They said this was in part thanks to the natural maintenance of soil and on-site biodiversity with predators that eat aphids. But in a statement put together by four conventional-turned-organic producers of sugar beets, the collective also claimed the real problem was pricing pressures. They said conventional producers get a lower price for their beet sugar, forcing them to stretch out their growing season by sowing seeds earlier in February or March to secure volumes. Organic producers can afford to sow up to two months later in late April, by which point the aphids have flown on, they said.
The French case
France has repeatedly gone further than the EU in its regulation of neonicotinoids. For example, in 2018, it not only banned imidacloprid, clothianidin and thiamethoxam but also thiacloprid two years before the EU followed suit as well as a fifth neonicotinoid, acetamiprid, despite the Commission deeming such a ban “neither scientifically nor legally appropriate.” In 2019, the French government also closed in on substances with “the same mode of action as neonicotinoids”, banning flupyradifurone and sulfoxaflor. The French Crop Protection Association (UIPP) is challenging this last decision, as is Bayer, which markets products containing flupyradifurone.
France had also committed to going further than the EU by only allowing derogations for neonicotinoids up until 2020, after which point, there would be no leeway for their use. French politician Barbara Pompili, minister for the environment under the socialist former-President François Hollande, said this was necessary to avoid “procrastination” and push the market toward finding alternatives.
In a speech delivered in 2016, she argued that the cut-off date was important as allowing exceptions in perpetuity would mean some neonicotinoids will simply never be banned.
Yet, when 2020 swung around and it was time to bid farewell to this right to derogate, the same politician, now minister for the environment under President Emmanuel Macron, signed a bill that made these derogations possible again until 2023.
The decision was praised by the French national conventional farming union, FNSEA. The union said this was necessary to protect the country’s sugar beet sector, which employs 46,000 people and has attracted Coca-Cola to set up shop on northern French soil. FNSEA president Christiane Lambert said that if French beet sugar farmers didn’t have the option of using neonicotinoids, these food industry giants would go looking for suppliers in countries that did.
The relevant ministries or agencies for Belgium, Poland, Romania, Austria, Finland, Hungary, Denmark and Lithuania were all contacted for comment. Only the Finnish government responded by deadline.