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Pest-control program pits public's right to know vs. trade secrets

By The Associated Press
10.19.07

SAN FRANCISCO — Residents say they're worried sick about a chemical mist aimed at stopping a moth from devouring crops along California's central coast.

Now the state's pest-control efforts also are piquing the interest of First Amendment experts, who say a judge considering the program's future this week could break new ground as he weighs the public's desire to know what's in the spray against the pesticide maker's right to keep its formula secret.

State attorneys asked a federal judge yesterday to let the state resume aerial spraying, despite residents' concerns that the chemical mixture made them ill.

Many of the product's ingredients remain a mystery, cloaked in nondisclosure agreements in a federal law governing pesticides that make them exempt from public-records requirements.

"With few exceptions, the First Amendment says when there is great public interest in this type of information, the government can't keep it from being disseminated in the public," said David Greene, executive director of the First Amendment Project, a nonprofit that defends free-speech rights. "The question the Supreme Court has never answered is what happens if that information is also a trade secret."

Since March, when a retired botanist in Berkeley found the first light brown apple moth in a trap in his backyard, the crop-eating Australian pest has infested 12 counties from north of San Francisco to Los Angeles.

State agriculture authorities designed an aerial spraying program to combat the moth using a synthetic pheromone that keeps it from mating without killing it and hired night-flying planes to douse communities in Monterey County for several nights last month.

U.S. District Judge Robert O'Farrell halted the program last week after hundreds of residents from Monterey to Santa Cruz — including an 11-month-old boy — complained of respiratory problems and aching stomachs.

Agricultural officials warn that if left unchecked, the moth could devour up to 250 species of plants and cause $2.6 billion in crop losses.

The pheromone spray they've used to combat it — a product called Checkmate that's manufactured in Bend, Ore., by Suterra, LLC — has been applied before in other states and abroad with no effect on human health, said Steve Lyle, a spokesman for the California Department of Food and Agriculture.

Company officials say residents' concerns are unwarranted.

"People are upset because the government has the authority to spray without their consent," said Suterra spokesman Steve Hartmeier. "If they were spraying people with Santa Cruz city water they would be concerned because it had too much chlorine in it, and chlorine is a carcinogen."

Still, O'Farrell said the lack of sound science about the product's components were cause to halt the spraying last week, after environmentalists sued, claiming the state never prepared an environmental-impact report to ensure it was safe for families and aquatic life.

He cited concerns over the "potentially harmful propensities" of a chemical called polymethylene polyphenyl isocyanate, which an official with the U.S. Environmental Protection Agency told the Santa Cruz Sentinel was an inert ingredient in CheckMate.

But on Oct. 15, the EPA suddenly reversed course, saying CheckMate didn't contain the ingredient — part of a chemical class known to trigger asthma and respiratory symptoms in sensitive groups — after all.

Spokesman Dale Kemery said trade-secrets laws prevented him from disclosing any more information about the pesticide and refused to answer additional questions yesterday.

Meantime, confusion over the spray's ingredients — as well as mounting questions over the legal bounds of pesticide law — has veteran intellectual property lawyers watching for an outcome.

O'Farrell did not immediately issue a decision following yesterday's hearing to extend the temporary injunction.

"If people are saying this is causing health problems, you would think the federal agency has some authority to force the manufacturer to disclose to them what's in the formula," said Rick Darwin, a San Francisco-based intellectual property lawyer.

"But then again, I've never seen a context in which trade secret law bumps up against public safety."


Related

California high court: Trade secrets outweigh free speech

Overturning lower court, justices say ordering computer programmer to remove DVD-decryption code from Internet doesn't violate First Amendment. 08.26.03

News media back bloggers in Apple trade-secrets case
Eight California newspapers, joined by AP and other press organizations, file brief asking that three online publishers be allowed to keep sources confidential. 04.12.05

Idaho officials won't disclose site of planned grass-burning
State Agriculture Department cites law that classifies protection of seed-crop fields as 'trade secret.' 07.28.05

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