New York State To Sue Dow Chemical

        Subject:     New York State To Sue Dow Chemical Subsidiary Over Misleading Ads
            Date: Tue, 4 Apr 2003
           From:     Stephen Tvedten <steve@getipm.com>
Organization:     Get Set Inc. (www.getipm.com)

To: Paul Helliker <phelliker@cdpr.ca.gov>
Director, State of California, Department of Pesticide Regulation

http://www.oag.state.ny.us/press/2003/apr/apr02a_03.html

Department of Law
120 Broadway
New York, NY 10271
Department of Law
The State Capitol
Albany, NY 12224

For More Information:
(518) 473-5525 For Immediate Release
April 02, 2003

Attorney General Eliot Spitzer today announced plans to sue one of the nation's leading pesticide manufacturers for violating an agreement against false advertising of its products.

The action against Dow AgroSciences LLC, a subsidiary of Dow Chemical Co., alleges repeated violations of its 1994 agreement governing the advertising of a widely used pesticide marketed as Dursban.

As part of the 1994 agreement, the company was supposed to stop making claims that the product was "safe." Instead, the company has continued to make that claim despite the fact that the product contains highly toxic substances, and despite the fact that such safety claims are expressly prohibited by state and federal law.

"Consumers must not be lulled into a false sense of security by misleading safety claims," Spitzer said. "They should be urged to use pesticides only with the utmost caution."

The lawsuit against Dow AgroSciences, which will be filed in New York State Supreme Court in Manhattan, seeks a court order directing the company to cease its deceptive advertising. The lawsuit also seeks substantial monetary penalties for the company's violations of its agreement with the state.

The lawsuit centers on Dursban, which contains chlorpyrifos, a synthetic compound that has been linked to severe health problems in humans including nerve damage, asthma and birth defects.

The Environmental Protection Agency, specifically citing health risks to children, took action in 2000 to prohibit most household uses of chlorpyrifos.

An investigation in the early 1990s by the Attorney General's Office found that Dow engaged in false and misleading advertising that violated both state and federal laws. In exchange for not paying fines for its illegal advertising claims, Dow signed an agreement with the state in 1994, in which it pledged to reform its advertising and marketing practices.

However, since the 1994 agreement, Dow AgroSciences has continued to advertise the safety of Dursban products, claiming they have no "long term (health) effects," and that the pesticide exhibited "no evidence of significant risk to the environment."

The case is being handled by Assistant Attorneys General Philip Bein and Lemuel Srolovic and Chief Scientist Michael Surgan Ph.D., of the Attorney General's Environmental Protection Bureau.

* Table I: Fraudulent Print and Video Advertising by Dow in New York State 1995 through 2001 * Table II: Fraudulent Internet Advertising by Dow Posted on Dow Website, as of September 24, 2002 * Table III: Fraudulent Internet Advertising by Dow Posted on Dow Website as of March 20, 2003 * Table IV: Fraudulent Print Advertising by Dow in New York StateBeginning in 1991 or Earlier to 1995 (352KB PDF) * Notice of Proposed Litigation (54KB PDF) ------------------------------------------------------------------------

About 200 environmentalists and students applauded at a Garden City forum yesterday as Attorney General Eliot Spitzer announced plans to sue the maker of a widely used insecticide for publicly claiming it is safe.

"Dow Chemical had sales of $27 billion last year, one would think they could easily abide by the law and accept slightly lower sales" of the insecticide chlorpyrifos, Spitzer said. The chemical is better known by its trade name, Dursban.

But a Dow attorney rejected Spitzer's charge that the company violated a 1994 agreement with the state that prohibited it from advertising that Dursban and other Dow pesticides are "safe." "This is a cheap shot," said Guy Relaford, global legal counsel for Dow AgroSciences, an Indiana-based Dow subsidiary that is the chief manufacturer of Dursban.

Because all chemical pesticides pose some degree of risk, federal regulations prohibit advertisements that describe them as "safe" or "nontoxic." Spitzer's predecessor, Robert Abrams. sued Dow for allegedly violating those regulations. In 1994 Dow settled the case by agreeing not to "publish or broadcast" claims in New York that describe its pesticides as safe.

The new dispute centers on messages the company wrote in Dow magazines and letters it sent to pest-control companies and other users of Dursban, as well as statements on Dow's Web site.

Spitzer's office maintains that those messages, which say that Dursban is safe when used according to the label, are advertisements that are designed to be read by the public or by spraying companies that pass the information on to consumers.

But Dow argues that those messages do not violate the 1994 settlement because they were designed not to boost sales, but to defend Dursban against attacks by environmentalists and the U.S. Environmental Protection Agency. "We have a constitutional right to address policy issues that relate to the safety of our products."

For a quarter-century, Dursban was a mainstay of insect control on lawns and in homes, gardens and even flea collars. The EPA halted home uses of Dursban in 2000 for safety reasons, but the chemical is still widely used on crops and golf courses. Its chemical structure is similar to nerve gas and animal tests have shown it causes nervous system damage at high doses. The EPA asked Dow to restrict home uses after concluding that it poses an "unreasonable threat" to children and infants. Dow rejects that conclusion, saying it only agreed to stop home uses to avoid years of litigation with the EPA.

Spitzer said his lawsuit would be filed next week, after a mandatory five-day waiting period, "unless we get an acceptable answer from Dow." Both sides said they expect to go to court over the matter.

The news came at an Adelphi University symposium on environmental threats to children, organized by Port Washington activist Patricia Wood and her group, Grassroots Environmental Education.

The forum featured talks by two prominent environmental scientists, John Wargo of the Yale University School of Forestry and Environmental Studies and Dr. Herbert Needleman of the University of Pittsburgh School of Medicine. Wargo's research found that some children are exposed to hazardous levels of diesel exhaust on school buses, especially if those buses are idling for long periods. He urged school districts to adopt no-idling policies for buses.

http://www.newsday.com/news/health/ny-lipest033204214apr03,0,5602649.story?coll=ny-health-headlines

GARDEN CITY, N.Y. (AP) -- New York Attorney General Eliot Spitzer said Wednesday that Dow AgroSciences has violated a 1994 agreement that it refrain from advertising that the pesticide Dursban is safe and warned the company he intends to file a suit over the matter.

A spokesman for Dow Agrosciences, a subsidiary of Dow Chemical Co. and one of the nation's leading pesticide manufacturers, said the Indianapolis-based company would mount a ``vigorous defense'' against Spitzer's ``meritless allegations.''

In a speech on children's health issues at Adelphi University, Spitzer said a 1994 pact called for the company to stop claiming that Dursban was safe. Since then, according to the attorney general, the company has continued to say it is safe.

``Consumers must not be lulled into a false sense of security by misleading safety claims,'' he said. ``They should be urged to use pesticides only with the utmost caution.''

The company was sent a letter Wednesday, giving it five days notice of the intent to sue. The lawsuit, which is expected to be filed next week in state court, would seek an order directing the company to halt its allegedly deceptive advertising and monetary penalties, said Spitzer spokesman Marc Violette.

Dursban, once a common household pesticide, is still used in agricultural products. It contains chlorpyrifos, a synthetic compound linked to severe health problems in humans, including nerve damage, asthma and birth defects, Violette said.

In the early 1990s, the attorney general's office found that Dow engaged in false and misleading advertising in violation of both state and federal laws. In exchange for not paying fines, Dow signed an agreement pledging to reform its advertising and marketing practices, Spitzer said.

But he said the company has continued to advertise that Dursban products have no ``long-term (health) effects'' and claimed that the pesticide showed ``no evidence of significant risk to the environment.''

Dow AgroSciences spokesman Garry Hamlin said Spitzer's accusations are ``unwarranted'' and ``grossly misrepresent the truth.''

``The truth is that there is not a shred of credible scientific evidence supporting these allegations,'' Hamlin said. ``More than 3,600 scientific studies have established the safety and effectiveness of these products.''

If you would like to be included in our mailing list for continuing information on pesticides, please email us at list@safe2use.com.

Nontoxic Products Recommended by Steve Tvedten

Now Available

Safe 2 Use Products and Services