What's in that moth spray? Judge weighing in
Northern Calif. residents want to know, but company says it's trade secret

Associated Press | October 19, 2007

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 free-speech lawyers, 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 Thursday to let them 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.

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

Judge Robert O'Farrell halted the program last week after hundreds of residents from Monterey to Santa Cruz 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."

Judge cites lack of environmental report
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 Monday, 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.

Agency spokesman Dale Kemery said trade secrets laws prevented him from disclosing any more information about the pesticide and refused to answer additional questions Thursday.

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 Thursday'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."