More time to use withdrawn insecticides than first thought

Variety of use-by dates published
Over the last few weeks there has been a wide variation of use-by dates published in other industry magazines and on distributors’ websites. In the Pest office we were aware of this variation, so set about working alongside HSE to produce a definitive list.

It’s not that the companies have been trying to be difficult, it’s just that interpreting the rules that have come out of Brussels is not easy – read our article Product withdrawals: What a muddle! in Pest Issue 40: August & September 2015

Don’t forget though that if you do stock up you must comply with all the regulations on storage.

So why the confusion and what’s the HSE’s interpretation of the rules?

Well, it’s a bit complicated so take this slowly. There are two bits of regulation involved, Article 95 and Article 89 and this is where the confusion has come in.

Article 89 is designed to allow for the transition from the old approval system – the UK Control of Pesticides Regulations (COPR) – to the new EU approval system under the Biocides Regulation (known as BPR). The relevant sub clauses being (2), (3) and (4) where it sets ‘sell-by’ and ‘use-by’ deadlines for products containing active substances that have gone through the EU BPR review.

Download the Article 95 withdrawn insecticides use-by dates table

 Some of the insecticide products affected by Article 95

However, if an active substance receives a positive approval decision, an official Approval date will be set at EU level. This will be at a time in the future to give companies time to put together applications for country-specific product authorisations. These must be submitted by the official Approval date. In the UK product authorisation applications go to the HSE.

Without going into all the detail, it is extremely unlikely that the companies making the products now affected by Article 95 will decide to apply for product authorisation. Where no product authorisation is applied for then Article 89 gives sellers 180 days to continue to sell the products and users have 365 days to use them up. These periods run concurrently and start from that official EU active substance Approval date.

Article 95 is purely concerned with ‘the making available on the market’ i.e. selling of certain products. It overrules the normal ‘sell-by’ dates that would apply under the Article 89 transition arrangements, effectively bringing the date forward so that no Article 95 affected products can be sold after midnight on 31 August 2015.

But as HSE has explained to Pest: “Article 95 does not have any effect on use. Use continues as it would always have done under Article 89.”

In practice this means there is not one date when all the affected products must be used by. Their use-by dates depend on the BPR status of the active substances they contain and the transitional arrangements for those active substances under Article 89.

All this is much easier to follow in some examples

• Take alpha-cypermethrin which is in many of the products listed in our table. This active substance has already been through the EU BPR Review and has been given an approval date of 1 July 2016. Normally, Article 89 would allow straight alpha-cypermethrin products to be made available i.e. sold until at least that approval date. Then, if by that approval date, an application for product authorisation is submitted the product could continue to be sold and used for a period to allow the authorisation process to take place. However if no product authorisation application is made, then Article 89 kicks in and stocks can be sold for a further 180 days, i.e. to 27 December 2016 and the product can be used for 365 days, i.e. until 30 July 2017. But, all the products listed in our table are affected by Article 95, so the normal ‘sell-by’ date is overruled and all sales must cease by the end of August 2015. Use of the straight alpha-cypermethrin products though can continue under Article 89 until 30 July 2017.

• But what about products which contain more than one active substance? Where a product approved under the old COPR contains more than one active substance then the ‘sell-by’ and ‘use-by’ dates are determined by the BPR Approval date of the last active substance in the product. So looking at GAT Lambda Plus which contains permethrin and lambda-cyhalothrin, both actives already have positive BPD approval decisions. Permethrin’s Approval date is 1 May 2016 and Lambda-cyhalothrin’s is 1 October 2013. The last active substance’s Approval date is therefore 1 May 2016. Assuming the company does not make an application for product authorisation, use will therefore end 365 days after the date of approval for permethrin, i.e. 30 April 2017.

• But there are also products on the Article 95 list which contain active substances that are still undergoing review under BPR. No approval decisions have yet been taken for tertramethrin or d-phenothrin. Whilst sales must stop by the end of August 2015, use of the products containing tetratmethrin or d-phenothrin can continue until the outcome of their BPR reviews are known. If it is non-approval, use-up will be no longer than 18 months after the non-approval decision; if it is approval and no product authorisation application is made then use will end 365 days after the Approval date. For products which contain both actives then it will be the last active substance’s official Approval date that will determine the start of the use-up period unless one of the actives receives a non-approval decision in which case use up will be no longer than 18 months after that non-approval decision.

Still confused?
Don’t worry if you’re still not quite following all this, HSE has made it easy by providing us with use-by dates for all the key products affected by Article 95 just download and keep our PDF on Article 95 withdrawn insecticides use-by dates.