The government's proposed restrictions on toxic chemicals will affect the fundamental rights of farmworkers and other farm residents who are routinely exposed to high levels of toxic pesticides, especially on wine and fruit farms. (Waldo Swegers/Bloomberg via Getty Images)
isStrict government regulations on hazardous chemicals affect the fundamental rights of agricultural workers and other farm residents who are routinely exposed to high levels of toxic pesticides, especially on wine and fruit farms.
This is the Ministry of Employment and Labor
Proposal for regulations on hazardous chemicals under the Industrial Safety and Health Act.
Former Minister of Employment and Labour Thembelani Nksesi published the draft for public comment on April 5.
The coalition said the rights affected were the right to fair administrative decision-making, democratic participation and a safe and healthy environment.
In a joint filing to the secretary, the African Biodiversity Center, the Trade, Handling, Agricultural and Allied Workers Union, the Women's Farm Project, Ubuntu Rural Women and Youth, and the University of California, Connecticut School of Public Health rejected the notice and comment process.
This includes a requirement to submit comments on proposed regulations in a prescribed form, as this would be “procedurally unfair” under the Promotion of Administrative Justice Act, and for the Minister and Department to conduct public consultations with farm workers and other people who work and live on farms and adjacent areas.
“Public consultation with farm workers, including seasonal workers and farm residents, is essential and will go a long way in recognising and acknowledging not only the technical nature of these regulations but, more importantly, the widespread non-compliance and chronic lack of enforcement of South Africa's occupational health and safety legislation.”
Repeal of the regulations in 2021
On 3 March 2021, the Minister issued the Hazardous Chemicals Regulations, replacing the 1995 regulations and bringing them in line with global practice based on the United Nations Globally Harmonised System (GHS).
These regulations dictate that pesticide labels and safety data sheets must follow a standardized approach in communicating chemical hazards. The hazards associated with a particular chemical, their nature and severity, must be conveyed through several media, including hazard statements, pictograms and signal words that appear on both the product's label and safety data sheet.
“Simply put, these regulations set out new safety obligations, chemical bans, and classification and labeling requirements and were scheduled to become effective and enforceable in September 2022,” the filing said.
“These laws require employers and farmers to assess the risks of any chemicals used in the workplace, take steps to control the risks associated with those chemicals, and provide information and training to workers who handle the chemicals.”
18 months after the regulation came into force, the Ministry has published a new proposed regulation, the intention of which is to repeal the Hazardous Chemicals Regulation of March 29, 2021 and its amendments of April 29, 2022, etc. This will take place 18 months after the date of enforcement.
“The proposed 2024 regulations consist of 22 pages of proposed new regulations, three appendices with 46 pages of tables containing highly technical information on countless chemicals, and Appendix 4, which provides a link to the draft Hazardous Chemicals Guidelines, a further 27 pages.”
“So we are being asked to comment on the 95 pages within 90 days through the notice and comment process, and that too only in writing in the prescribed format.”
“Pesticide treadmill”
Regulations requiring employers to provide protective gear and information to workers exposed to hazardous chemicals and pesticides “will continue to be ignored by employers,” and governments will “continue to turn a blind eye” and fail to ensure compliance and enforcement, the coalition said.
A 2017 survey by the Women on Farms project found that although 75% of agricultural workers are exposed to pesticides, only 27% are informed about the health hazards, and 66% of workers say they do not receive protective gear.
“The Department of Labour will continue to cite a shortage of inspectors to visit workplaces on South African farms, leaving the majority of farm workers, whose working conditions are more precarious than ever, with little prospect of having their complaints investigated by labour inspectors,” the coalition said.
Farm workers are not provided with laundry facilities at work and are unable to dispose of pesticide residues on their bodies and clothes, “so they bring the residues home to their families.” Studies have proven that rural areas are at increased risk of chronic diseases linked to pesticides, including cancer, birth defects and learning disabilities.
There are more than 9,000 herbicide, insecticide and fungicide products registered for use in South Africa and “we must move away from the erratic behaviour of pesticide use”, the coalition said.
“As a start, and as a bare minimum, we are calling on Agriculture Ministers to ban 67 highly dangerous pesticides that are already banned in the European Union. These include Roundup, Dursban and Paraquat, which have been banned in the EU since 2007.”
Flawed and inexplicable
Civil society network Unpoison said the ministry's “flawed and unaccounted process” for updating the tough 2021 regulations risks erasing many of the protections given to hundreds of thousands of people exposed to dangerous chemicals at work.
“While previous regulations allowed for improvement, the proposed changes would dangerously increase exposure to hazardous chemicals. The question remains as to why these regulations were being weakened and watered down, especially so soon after they were passed,” the report said.
Ampoison called on the minister to withdraw the proposed regulations.
The group's concern is that the definition lists are incomplete: “One horrifying example is that the definition of hazardous chemicals itself is incomplete, listing only Category 1 of the GHS classification, excluding Category 2 and subcategories.”
This means that highly hazardous pesticides, including both active ingredients and combinations, are exempt from these regulations, the company said.
The strength of a law depends on the definition, the language used, and how it is interpreted. “Definitions and correct language are key elements in reducing ambiguity and blind spots in policies and regulations. Poor definitions can be misused and can have unintended consequences,” Ampoison noted.
In the case of hazardous chemicals, this “can be deadly,” so exempting a class of chemicals from these regulations would “pose dire threats of injury or even death to innocent workers who have no choice if they want to keep their jobs.”
'Extremely irresponsible'
If pesticides were not included in the regulations, farm workers would be disproportionately exposed to risk, which Amposon said was “grossly irresponsible” by the USDA.
Another concern is that the thresholds for exposure in the workplace are so high: “The limits set out in the 2021 regulations have been relaxed to very harmful levels in the proposed updates, specifically regulation 7(2)(b), relaxing the proportions of HCAs, for example. [hazardous chemical agent] Increase the content of the ingredient to less than 10% to 15%. For hazardous chemicals, even a 5% increase is dangerous.”
In an “equally worrying indicator,” Ampoison said that if a risk assessment finds that hazardous chemicals exceed 50% of the occupational exposure limit, employers are required to implement exposure reduction measures within 24 months.
“Similarly, if a risk assessment identifies a hazardous chemical as a risk, employers only need to monitor levels of the hazardous chemical every two years. UnPoison argues that every six months is barely acceptable in either scenario when it comes to exposing workers to hazardous chemicals.”
The ministry had not commented at the time of publication.