Flying Right At the Issue
Disclosure of moth pheromone product’s inert ingredients incite a legal battle.
Thursday, October 18, 2007
At odds over the question of trade secrets versus the public’s right to know, a biopesticide manufacturer and the Monterey County Weekly have sued each other. A third case brought by environmentalists is scheduled to be heard Oct. 18.
On Oct. 12, attorneys for Bend, Ore.-based Suterra LLC filed a lawsuit against the Weekly and The Santa Cruz Sentinel in Los Angeles County Superior Court over the disclosure of ingredients in the synthetic pheromone products being used to combat the invasive light brown apple moth.
The suit sought a temporary restraining order requiring the newspapers to immediately cease identifying the products’ inert ingredients and remove all related references from their websites. The company also seeks compensation for monetary damages caused by the disclosure.
The Weekly filed a complaint in Monterey County Superior Court on Oct. 15, arguing that Suterra may not sue for damages because the newspaper has a First Amendment right to publish information about the inert ingredients. The state Constitution and civil code also support that right, according to Weekly attorney Roger Myers.
On Oct. 16, L.A. County Superior Court Judge David Yaffe ruled against Suterra’s request for a temporary restraining order, saying he didn’t see enough evidence that the list of inert ingredients remained a trade secret after being disclosed by the federal government and newspapers, according to Myers. The judge set another hearing for early December.
The judge’s ruling serves the public interest, says Weekly CEO Bradley Zeve: “Doesn’t the public have a right to know what is being sprayed over their heads?”
Suterra legal counsel Craig Cooper declined to comment on the legal actions. But in a memorandum filed with the Los Angeles court, the company rejected the Weekly’s argument that the inert ingredients no longer constitute a trade secret because they already have been published.
“Two wrongs cannot make a right,” Suterra attorney Joanna Kim writes.
The saga began in late August, when the California Department of Food and Agriculture (CDFA), in cooperation with the U.S. Department of Agriculture, announced plans to spray the Monterey Peninsula with two synthetic pheromone products designed to disrupt the moths’ mating.
The first aerial spraying occurred in mid-September, and officials prescribed a second round for 30 days later. But just hours before planes were to begin spraying on Oct. 10, Monterey County Superior Court Judge Robert O’Farrell ordered a temporary halt.
The judge’s decision came in response to a request for a temporary restraining order filed by local green group Helping Our Peninsula’s Environment. HOPE sued the CDFA and state Agriculture Secretary A.G. Kawamura on Sept. 24, alleging that the spray plan violates state environmental law.
Four days later the Sentinel published the list of inert ingredients – which don’t affect the moths, but rather time-release the pheromones – in one of the products, CheckMate OLR-F. Court papers reveal U.S. Environmental Protection Agency (EPA) spokesman Dale Kemery as the Sentinel’s source. The CDFA and Suterra have refused to verify the list, asserting the inert ingredients are a trade secret.
After Suterra threatened legal action, the Sentinel took the list of inert ingredients off its website. The original article is still available in libraries and on LexisNexis.com. Suterra also threatened legal action against the Weekly, but in an Oct. 11 story the newspaper identified two of the inerts, citing the Sentinel.
One of the inerts, polymethylene polyphenyl isocyanate (PPI), has been linked to health concerns including itchy eyes and respiratory problems. The symptoms are among those reported by more than 100 Peninsula residents after September’s aerial application. O’Farrell cited health concerns related to PPI as his reason for granting HOPE’s request to halt the spraying.
On Oct. 15, EPA stated on its website that PPI is not in CheckMate OLR-F. A legal declaration by Suterra research director Kristin Ketner indicates that the compound is used in the making of the product, but it reacts into different chemicals by the time the product is ready to use. Suterra will not reveal what those chemicals are but maintains they are safe.
“Knowledge of the inert ingredients and technology would allow others, including Suterra’s competitors, to create knock-off versions,” Suterra president Steven Hartmeier states in a legal declaration.
Other newspapers that have identified at least one of the ingredients, including The Monterey County Herald, were not named in the lawsuit.
Suterra filed a motion Oct. 15 to immediately “seal,” or remove from public access, any reference in HOPE’s case file identifying the inert ingredients. Attorneys for the Weekly and the Sentinel plan to oppose Suterra’s motion.
O’Farrell is scheduled to hear arguments about the products’ safety Oct. 18. If he lifts the temporary restraining order, spraying may resume within days. He also could consider Suterra’s motion to seal the documents identifying the inerts and hear arguments from the Weekly and Sentinel against it.
HOPE’s lawsuit puts in question CDFA’s plans to spray Salinas, north Monterey County and Santa Cruz County with a similar product, CheckMate LBAM-F, in early November.