New accord recognizes company's right to correct the record about its products

Dow AgroSciences and the New York attorney general have resolved differences over how pesticides can be described in company communications accessible to New Yorkers.

The new agreement expressly acknowledges the company's right to defend its products against false statements made by others and clearly distinguishes between such defense and claims made in advertising.

This action, formalized in a consent order, updates a ten-year-old agreement with the New York attorney general's office under which the company agreed that in advertising or product literature accessible to residents of the state of New York it would not refer to its products as "safe," even when used as directed and regardless of how thoroughly they had been studied.

That agreement, however, led to further disputes when the New York attorney general's office interpreted the provisions as applying to responses posted on the company's Web site to allegations made against its products -- the Internet not having been anticipated at the time of the 1994 agreement -- and also to other communications not identified as subject to restriction.

Additionally, the company's right to defend against attacks made on its products, such as chlorpyrifos insecticides (trademark, Dursban*), was challenged by the attorney general's office as violating the 1994 agreement.

The new agreement, resolving these disputes, includes a $2 million payment by the company to the New York attorney general's office. While the company disagrees with the attorney general's position on that prior agreement, it is making the payment as a means of resolving the dispute without protracted litigation, and in order to obtain an affirmation of the company's right, in the state of New York, to correct false statements about its products.

"The 1994 agreement restricted our ability to support and defend our products," said Guy A. Relford, the company's head of litigation, "even if our statements were true. For instance, the old agreement was interpreted by the New York attorney general as prohibiting our informing people that the U.S. Environmental Protection Agency had registered one of our products as a Reduced Risk Pesticide.

"Further conflict resulted," Relford added, "when the old agreement was interpreted as affecting a wider range of communications than we had anticipated. Today, those issues are resolved, and we're ready to move forward."

Under the new agreement, Dow AgroSciences is allowed to inform New Yorkers without fear of reprisal from the attorney general that certain of its products are registered by the U.S. Environmental Protection Agency as Reduced Risk Pesticides.

The new agreement between Dow AgroSciences and the New York attorney general's office addresses advertising, does not affect product labeling and expressly distinguishes between advertising and the company's response to product-related public concerns.

"We could not have accepted this agreement," Relford said, "without specific provisions in the consent order affirming our right to respond to false statements about our products, including statements made in the context of the attorney general's investigation.

"In essence," Relford added, "the new agreement reaffirms our right to provide residents of the state of New York with important information about the proper use, and the health and environmental characteristics, of our products, consistent with what federal and state law allows." 

Dow AgroSciences LLC, based in Indianapolis, Indiana, USA, is a global leader in providing pest management and biotechnology products that improve the quality and quantity of the earth's food supply and contribute to the health and quality of life of the world's growing population. Dow AgroSciences has approximately 6,000 people in over 50 countries dedicated to its business, and has worldwide sales of US $2.7 billion. Dow AgroSciences is a wholly owned indirect subsidiary of The Dow Chemical Company.

*Trademark of Dow AgroSciences LLC