Pesticide Recommendations And Staff Liability
Pesticide Recommendations And Staff Liability
For many years the Pesticide Management Education Program has advised Cornell
Cooperative Extension off campus staff, and faculty that pesticide
recommendations are not to be made unless the recommended use of the pesticide
is fully registered. If a recommendation is made that appears on the pesticide
label, in the current Cornell Pest Management Recommendations series or in other
publications sponsored by New York State educational and experimental
institutions, you are not individually liable in the event that a problem arises
because of the recommendation. If, however, you make a recommendation not
specified on the label or by these agencies which is an unregistered use, you
may be liable individually without indemnification by the college. If you make
an unauthorized recommendation, you are on your own and may very well share
liability with the one who makes the misapplication.
University Counsel advises that once you are put on notice that certain
activities are not authorized by Cornell, a continuation of those activities is
clearly not within the scope of the employment relationship and must not
continue. Furthermore, you must continue to correct the public's perception of
the unauthorized recommendation so that you are not perceived as approving it by
What legally constitutes a recommendation can be a very delicate and sensitive
question. Have you ever been confronted with a grower's pest problem and knew of
a pesticide, even though unregistered for that particular use or crop, that
would solve the problem? Have you ever told the grower that he cannot legally
use the product and then proceeded to tell him how to apply it and how much to
use? Would the plaintiff's lawyer in a liability case resulting from an
unregistered use be able to demonstrate that this information did indeed
constitute an implied recommendation? An implied recommendation of an illegal
use to a grower would be doing a great disservice to agriculture, your client,
and yourself. We have a responsibility to the consumer and the environment, as
well as to the grower.
How should you report research results as part of your educational programs
without leaving yourself open to charges of implied recommendations? What about
mentioning materials being used under Special Local Need (SLN) 24(c)
registrations or EPA Section 18 emergency exemptions in neighboring states that
do not have New York State registrations? The following guidelines have been
developed to assist you.
- Be sure any recommendation that you make is registered for the use as indicated
- the label, or
- Cornell Pest Management Recommendations, or similar New York State educational
- supplemental labeling as in SLN 24(c) registrations or EPA Section 18 emergency
exemptions for New York State, or
- 2(ee) recommendations.
Federal and State laws make it illegal to use a pesticide "in a manner
inconsistent with its labeling." Section 2(ee) of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), as amended, defines this term and states
that certain types of use, while not specifically stated on the pesticide label,
are not considered uses inconsistent with the label. These uses include:
- applying a pesticide at any dosage, concentration, or frequency less than that
specified on the labeling,
- applying a pesticide against any target pest not specified on the labeling if
the application is to the crop, animal, or site specified on the labeling,
unless the EPA Administrator has required that the labeling specifically state
that the pesticide may be used only for the pests specified on the labeling
after the EPA Administrator has determined that the use of the pesticide against
other pests would cause an unreasonable adverse effect on the environment,
- employing any method of application not prohibited by the labeling (aerial
application excluded in New York), or
- mixing a pesticide or pesticides with a fertilizer when such mixture is not
prohibited by the labeling.
Individual states are allowed to be more restrictive, and New York State has
determined that it is necessary to place more stringent requirements on 2(ee)
uses/recommendations. Under state regulations Part 325.2(b), "registered
pesticides may be used only in accordance with label directions or as modified
or expanded and approved by the Department." Modifications or expansions of
registered labels under 2(ee) may be made under the following conditions when
used in New York State:
- All proposed recommendations must be made in writing by a recognized research
institution such as the New York State College of Agriculture and Life Sciences
at Cornell University or the New York State School of Forestry at Syracuse. You
cannot make a 2(ee) recommendation without meeting this requirement.
Furthermore, manufacturers, distributors and individual users may not make such
- The proposed recommendations must be submitted to the New York State Department
of Environmental Conservation (NYSDEC), through the Pesticide Management
Education Program and be accompanied by appropriate data that demonstrates the
efficacy or otherwise supports the recommendation.
- Recommendations must be approved in writing by the NYSDEC. Once approved, the
2(ee) recommendation can be included in the publications of the research
- Anyone using a pesticide under an approved 2(ee) recommendation must have the
appropriate publication with the approved 2(ee) recommendation in his/her
possession at the time of the application.
- Manufacturers proposing changes in registered labels must file for SLN
registrations under Section 24(c) of FIFRA.
In the event that 2(ee) recommendations are needed but not available, you should
make the need known to the Pesticide Management Education Program so that
remedial action can be taken.
- If you are aware of unregistered pesticide uses within your area of
responsibility, make the positive statement that the use is unregistered and
illegal, either verbally, if you are in a face-to-face situation, or in writing,
if you are dealing through extension publications. In addition, the Pesticide
Management Education Program should be notified of such uses and your evaluation
of their need and efficacy, so that the procedure to obtain legal use can be
- Do not accompany oral or written statements of unregistered pesticide use with
suggestions as to effectiveness, methods of application, amounts to be used,
etc. This could be construed as a tacit or implied recommendation. For example,
statements such as the following could be construed as recommendations so do not
Kill Quick is the same as Dead End but not as concentrated so you must use 3-4
qts/A but not legal because corn use is not on the label. Kill Quick is 50% the
cost of the Dead End for the same amount of active ingredient.
The most effective rate tested was a 1% solution which can be made up by adding
5 tablespoons of Dean End to 5 gallons of water. Test the spray on both new and
old leaves to determine any adverse effects.
Likewise, if the pesticide is registered in another state or is under an EPA
Section 18 exemption or Experimental Use Permit in another state, do not imply
that it might be used in New York State.
- How can you reconcile research reporting with the above guidelines? Both
research/extension faculty and CCE off campus staff constantly provide reports
of ongoing research as a necessary part of their education programs. When
meetings such as the pest management conference, weed tours, on-farm
demonstrations etc. are held, results of the promising experimental compounds or
new users or applications of already registered compounds can be legitimately
reported. However, any implication that these or other experimental results can
be immediately transposed into commercial use prior to EPA and NYSDEC
registration must be strictly avoided. In addition, be particularly careful not
to imply approval of unregistered uses in newsletters, popular articles, etc.
While there are no guarantees regarding potential liability, statements such as
the following are suggested for reporting research results.
Of the test treatments, a 1% solution of Kill Quick was the most effective.
In comparative research evaluations conducted throughout the growing season,
Kill Quick consistently out performed the other 4 test compounds at the 1 lb
Each situation will be different. However, it is your responsibility to evaluate
and decide whether you are simply reporting research results or going further
and implying a recommendation. It is also your responsibility to make the
positive statement that the use is presently unregistered. To further strengthen
the fact that you are reporting research results, University Counsel highly
recommends the use of a disclaimer on research reports and oral presentations
that prominently states "The information provided in this research report is not
and should not be considered as an expressed or implied recommendation of use."
Additional Information Regarding Liability
For associated information please refer to the Category 10 Pesticide Applicator
Training Manual, Demonstration and Research. See pages - for Guidelines for
Cornell Cooperative Extension Off-Campus Staff Who Conduct Demonstrations or
Research with Pesticide; pages - for Experimental Use Permits and pages - for
Research with Pesticides Registered by EPA but Not by DEC.