Judge Jay Bybee, U.S. Court of Appeals for the Ninth Circuit
Image: Jason Doiy/The Recorder
SAN FRANCISCO — As the U.S. Court of Appeals for the Ninth Circuit weighed whether to sign off on EPA approval of a pesticide sewn directly into clothes and other fabrics, it appeared the decision might turn on a scientific distinction familiar to parents everywhere: the difference in chewing habits between a 1-year-old infant and a 3-year-old toddler.
Judges Jay Bybee and Jerome Farris' paternal instincts seemed to come into play as they debated with lawyers for the Natural Resources Defense Council, the Environmental Protection Agency and the pesticide manufacturer about how a young child's teeth, gums, saliva and swallowing could affect ingestion of invisible nanosilver particles.
"We may have more saliva but less swallowing" with a 1-year-old, Bybee said. "We have more drooling."
"We need a drooling study," he joked.
The issue in Natural Resources Defense Council v. EPA was whether the EPA properly granted conditional registration for Swiss manufacturer HeiQ's antimicrobial product AGS 20 under the Federal Insecticide, Fungicide and Rodenticide Act. The product contains microscopic particles of silver that are applied to, or sewn inside, textiles like clothes, blankets and pillowcases, to suppress bacteria growth.
NRDC attorney Catherine Rahm of Washington argued Wednesday that the EPA erred by assuming in its risk assessment that 3-year-olds would be the most vulnerable consumers. "Infants are more likely than any other subgroup to chew on fabrics that could contain this pesticide," Rahm told the court.
The EPA argues NRDC waived the infant argument by failing to raise it during public hearings, but Rahm pointed to a comment NRDC submitted that referenced "infants and children."
"Infants are not toddlers and infants also are not children," Rahm said.
That drew a response from Farris, the father of two daughters. "You aren't going to tell many mothers that infants aren't children," he said.
Yes, Rahm replied, but EPA routinely distinguishes between infants and children in its studies. And the agency's claim that 3-year-olds chew more aggressively than infants is unsupported by the record, she argued.
"They do have teeth," Farris pointed out.
But infants have "hard gums," Rahm said, and "on the other side of the ledger, infants have a lot more saliva, so for all we know that's a more important factor for extracting a pesticide."
"It may be and I'm not going to speculate on it," Farris said, "but with the saliva, out comes everything that's inside that mouth."
When Matthew Henjum of the Justice Department's environmental defense section took the lectern, Bybee, a father of four, counseled him not to spend much time arguing NRDC doesn't have standing to bring its claim. "We've got affidavits in the record from parents who said 'Look, we're very concerned about this,'" Bybee said. For challenges to EPA rule making, "the standards for standing are just not that high."
Bybee and Farris also encouraged Henjum and Benjamin Shatz, an attorney for HeiQ, to skip the waiver argument. Farris suggested the court did not want to rule on hyperprocedural grounds, "and then we find out, 'uh oh, a lot of babies are going to suffer.'"
On the merits, Henjum argued that EPA made extremely conservative assumptions, modeling a 3-year-old who wore textiles treated with AGS 20 while simultaneously chewing on them. The agency has a long-standing practice of treating 3-year-olds as the most vulnerable consumer to textiles, he added. "This is a presumption EPA has developed over time based on its institutional expertise," he said, and validated in this instance by an independent advisory panel of scientists.
Bybee wanted to know if the product would come with a warning label. "Actually," said Shatz, a partner at Manatt, Phelps & Phillips, "the idea here is that because this is an added feature of the product, it would be revealed, maybe not so much as a warning, but as part of the advertising."
"It's going to be called something other than AGS 20," Bybee said. "It's going to be called 'super coating that makes you not stinky.' And that's very different from saying, 'This contains nanosilver that you don't want to let your infants chew on.'"
