This synopsis of a recent student comment featured in the San Joaquin Agricultural Law Review is part of an ongoing series for Fresno County Bar Association’s Bar Bulletin. The San Joaquin Agricultural Law Review, founded in 1991, is the oldest agricultural law review in the nation. It is published annually by students of San Joaquin College of Law, and presents student and scholar works on legal topics of current interest to those in agriculture, government, business and law. Its articles and comments have been cited by the United States District Court for the Eastern District of California, the United States District Court for the Middle District of Tennessee, the California Supreme Court, the Minnesota Supreme Court, the Court of Appeal for the Fifth District of California and the New Mexico Court of Appeals among others. The complete Comment is available online, along with the entire 24th Volume and the previous 23 Volumes at SJCL.edu/sjalr. Professional articles are always welcome. Contact Volume 25 SJALR Executive Editor Jeffrey Castleton at This email address is being protected from spambots. You need JavaScript enabled to view it. for more information.

 

 

 

A Modern Tale of the Fox Guarding the Hen House: The Inherent Conflict of Interest that Exists When Pesticide Distributors Employ Pest Control Advisers

 

By Jennifer Oleksa Vanzant

 

Assistant Editor-in-Chief

 

24 San Joaquin Agric. L. Rev. 1 (2015)

 

San Joaquin Agricultural Law Review

 

 

In California, when agricultural growers want to apply pesticides to their crops, they are required to first obtain a recommendation from a licensed Pest Control Adviser (“PCA”). Imagine you are a grower and in need of such a recommendation. A PCA visits your property to determine what type of chemical you need and how much of it is required to keep your precious crops protected from pests that could destroy your profit. The PCA tells you that he just so happens to sell the exact pesticide that he has recommended for your crop. This is a common scenario experienced by farmers, considering that nearly ninety percent of all PCAs are employed by agricultural chemical distributors and sell the very products they recommend to farmers. In fact, a substantial number of these company affiliated PCAs pocket a hefty commission for selling their employers’ products. This presents an extraordinary conflict of interest: PCAs employed by pesticide distributors provide pest control advice that is biased toward the profit of their employers and also aimed at earning a commission.

 

The incentives for company affiliated PCAs to sell their employers’ product are substantial because their job security, income, and often bonuses are all dependent upon the promotion and sale of their company’s pesticides. For some farmers, this conflict of interest leads to a very destructive outcome. For example, in 2010, a PCA employed by agricultural chemical giant Britz-Simplot recommended and sold a product to G & M Farms, representing that it had been tested and was safe for use on blueberries; however, this was a false representation. As a result of using the product in the manner and amount recommended by the PCA, most of G & M Farms’ blueberry crop was rendered completely unmarketable or diminished in quality. Although both the company affiliated PCA and the pesticide distributor knew or should have known that this particular pesticide was not safe for use on blueberries, this information was never disclosed to G & M Farms.

 

Despite the potential for harm, the conflict of interest created when pesticide distributors employ PCAs has survived virtually unregulated since as early as the 1950s, when Integrated Pest Management (“IPM”) pioneer Robert van den Bosch was just beginning his career as an entomologist. He waged a controversial war against company affiliated PCAs, declaring: “[p]erhaps the greatest absurdity in contemporary pest control is the dominant role of the pesticide salesman, who simultaneously acts as diagnostician, therapist, nostrum prescriber, and pill peddler.” Van den Bosch’s book, The Pesticide Conspiracy, was published nearly forty years ago and many of his concerns regarding company affiliated PCAs remain relevant in the modern agricultural world. Decades later, most PCAs are employed by the pesticide industry and have a fundamental conflict of interest.

 

This Comment explores the inherent conflict of interest that exists when pesticide distributors employ PCAs, the destructive consequences which result from the conflict, and how eliminating company affiliated PCAs will undoubtedly reduce pesticide use, pesticide residues, and the health, safety, and environmental concerns caused by under-regulation and over-prescription of chemical pest control. This Comment examines the existing conflict of interest prohibition for government employees who make recommendations, and the absence of a similar prohibition imposed on PCAs operating in the private sector. Further, it will draw parallels between the current pest control adviser conflict of interest and a similar conflict resolved long ago in the medical field. This Comment sheds light on the harmful effects of the conflict of interest, including the over-prescription and over-use of pesticides, as well as the pesticide distributors’ ability to avoid liability for such harms. This Comment recommends the elimination of the conflict of interest and the promotion of less hazardous, more sustainable methods of pest control. Finally, this Comment concludes that failure to erect a legal barrier between pesticide advisers and pesticide salesmen acts as an open invitation for the fox to continue guarding the hen house.