There are several weaknesses in Dow’s claims. For one, as the David Suzuki Foundation argues, [i]n the absence of sufficient evidence to definitively establish the cancer risks (or lack thereof) associated with 2,4-D, reference to … [the class of chemicals to which 2,4-D belongs] …is entirely appropriate. Lack of evidence does not necessarily equate to lack of hazard nor justify abandoning precautionary measures given the documented risks associated with closely related chemicals.119
Secondly, Quebec criteria for imposing a ban also include consideration of endocrine disrupting potential. 2,4-D has since been shown to have such potential, providing an additional, legitimate basis for the ban.120 It has also been linked to other serious illnesses.121
115 Ibid., at para 19.
116 Quebec’s Pesticides Management Code (supra note 16), phased in between 2003 and 2006, prohibits the use and sale of 20 active ingredients in lawn pesticides. Grounded in the precautionary principle, the Code was developed using a methodology that screened chemicals associated with increased risks of cancer and endocrine disruption. 2,4-D falls under a class of chemicals called chlorophenoxy herbicides. Quebec banned all forms of 2,4-D on the basis that the International Agency for Research on Cancer (IARC) classified chlorophenoxy herbicides as possible human carcinogens (“David Suzuki Foundation,” Briefing Note, “NAFTA Challenge To Quebec’s Ban on 2,4-D Lawn Pesticides” (April 9, 2009), online: David Suzuki Foundation, http://www.davidsuzuki.org/files/SWAG/Health/DOW_Briefing–EN.pdf [“Suzuki Briefing Note”]).
117 Dow suggests the IARC classification does not establish the carcinogenity of 2,4-D in particular (Ibid., at 3).
118 NOA, supra note 110 at paras. 32-33.
119 Suzuki Briefing Note, supra note 116 at 3.
Finally, Dow’s reliance on the PMRA’s approval of 2,4-D as evidence that Quebec lacks scientific reasons for banning the product should carry little weight. Under Canada’s federal system pesticide regulation is a matter of shared provincial and federal jurisdiction, and provinces are allowed to impose higher standards of precaution when considering the safety of potentially harmful chemicals. Since all pesticides must be federally registered to even be considered for use in provinces, any pesticides affected by a provincial ban will have been PMRA approved. That is simply a product of the system of dual jurisdiction. Quebec would not have had to consider banning chemicals not approved by the PMRA.122 Lastly, from a broader viewpoint it is also notable that Quebec is not alone in taking the precautionary measure of banning 2,4-D. The province of Ontario has similar legislation that restricts the use of 2,4-D and countries such as Denmark, Norway and Sweden have all banned the product.123
121 2,4-D has been linked to neurodevelopment problems, neurological disorders, and damage to reproductive and
immune systems (Ibid).
122 Ibid., at 3-4.
123 Ibid., at 4.