Giving chemical use advice
Many chemical users in Victoria rely on information provided by others when selecting and using agricultural chemicals on their properties.
Private agronomists, industry representatives, chemical resellers, chemical company representatives, DEDJTR agronomists, consultants, and sometimes neighbours provide advice about chemical use and have a duty to ensure that the information they provide is accurate and reliable.
Methods of providing information
There are various ways to provide chemical use information, such as:
- verbal communication
- written advice notes
Written information is best because it reduces the risk of information being misinterpreted or forgotten. Information can be referred to by the chemical user at any time, reducing the need to rely on their memory (which can cause a mistake). It also provides a record of the advice given that can be used should things go wrong to determine whether the problem occurred as a result of the advice provided or from other factors.
Laws exist to protect chemical users who incur damage or cause contamination of crops or livestock from the misuse of chemicals.
Section 59 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 addresses the provision of 'False or Misleading Statements'. Any person who provides chemical use information that financially disadvantages another person who relies upon it could find themselves prosecuted by DEDJTR or exposed to civil litigation by the damaged party for the recovery of any losses incurred.
Chemical product labels provide detailed information about what agricultural produce the chemical can be used on, the pests that will be controlled or the effect the chemical will have, application rates, any withholding periods that apply, and any specific precautions or restrictions that apply.
Providing on-label information presents the lowest level of risk. Any person who provides information about chemical use that is entirely consistent with the product label has a high degree of risk protection because the label is a legal document that is warranted by the product manufacturer.
Advice regarding the use of a chemical product other than by the directions for use specified on the product label is called 'off-label' advice. The person who provides off-label advice is responsible for any adverse consequences that may result from the user following their advice.
There are three areas where providing off-label advice is an offence under the Act. These are:
1. When the advice, if relied upon, would cause a user of the chemical product to breach part of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 or the regulations made under the Act.
An agronomist advises a farmer to use a herbicide at 5L/ha for the control of skeleton weed when the label states the maximum label rate is 3L/ha.
It is an offence to advise a person to use a chemical product at an application rate higher than the maximum rate stated on the chemical product label for that use unless an applicable permit for this use has been issued.
A neighbour advises a farmer to use a herbicide on a drainage channel when the label for that product states 'DO NOT apply or drain or flush equipment on or near desirable trees or other plants or no areas where their roots may extend or in locations where the chemical may be washed or moved into contact with their roots'.
It is an offence to advise a person to use a chemical product in a way that contradicts any 'DO NOT' statements contained on the label unless an applicable permit to do so has been issued.
An agronomist advises a farmer that a herbicide containing paraquat (a Schedule 7 Poison and 'restricted use' chemical) can be used post sowing/pre-emergent to control brome grass in cereal crops. This is an off-label use of a restricted use chemical, and is therefore illegal. It is important to note that the farmer doesn't need to have acted on the advice and actually committed the offence, it is illegal to provide a person with advice that if relied upon would lead them to commit an offence.
It is an offence to advise a person to use a chemical in a manner that is illegal.
2. When the advice, if relied upon, leads to the contamination of stock animals or agricultural produce.
It is an offence to advise a person to use a chemical product on a crop that is not listed on the label that results in produce containing chemical residues that exceed the maximum residue limit (MRL). If an MRL has not been established, any detection is a violation.
- When the advice, if relied upon, would injuriously affect plants to which the chemical product is to be applied.
A carrot grower is having trouble late in the season managing broadleaf weeds. His neighbour suggests that he use a herbicide containing linuron to clean them up. The grower uses a linuron product off-label and controls the weeds. Two weeks later, he harvests the carrot crop.
Subsequently, samples of the carrots are taken from the market and tested for chemical residues (as part of the normal process), and linuron residues are detected above the MRL, meaning the carrots are contaminated.
The neighbour has provided false and misleading advice that directly led to the contamination of the carrots, and the grower may have committed the offence of selling contaminated produce. Any remaining carrots may have a Contaminated Agricultural Produce Notice (CAPN) placed on them restricting their sale.
3. When the advice, if relied upon, would injuriously affect plants to which the chemical product is to be applied.
A farmer subscribes to a newsletter that provides chemical use information. A recent issue suggests an off-label mix of chemicals for cereal seed treatment (using a foliar fungicide) that is cheaper than the registered seed treatment product, but contains the same active ingredients.
Keen to save money, the farmer treats his cereal seed with the mix, only to find that when the seed was sown, very poor germination resulted as the solvents in the foliar fungicide killed most of the seeds. The registered product for this use does not contain the harmful solvents.
Given that the farmer relied on the information contained in the newsletter and this led to many of the cereal seeds being injured, the author and/or newsletter publisher committed the offence of making False or Misleading Statements.
Maps and other information
People who use or coordinate agricultural spraying contractors for agricultural spraying work may provide the applicator with information (e.g. maps or diagrams) relating to the areas to be sprayed.
Information provided to spray contractors must be accurate and reliable, and contain information on the target area, its surroundings (e.g. crops/ livestock, waterways, dams) and whether there are any sensitive areas (i.e. school, hospital, aged care service or children's services such as kindergartens or child care centres) within 200 metres of the land to be sprayed and the location of these sensitive areas.
It is an offence for a person to provide maps or diagrams containing information about agricultural spraying to agricultural spraying contractors where the information leads the applicator to commit an offence under the Act.
Example: A pilot was hired to spray a cereal crop in a paddock adjoining the field pea crop to control wild radish. The pilot was given a map of the area that incorrectly labelled the field pea crop as the cereal crop.
As a result, the pilot was not concerned when the wind was blowing towards the field pea crop, because he relied upon the information on the map that showed the field pea crop as a cereal crop, and he assumed it would be unaffected by the herbicide.
While the map had nothing to do with the actual application of the chemical, and the wrongly labelled field pea crop was not the target of the spraying, the incorrect information on the map that was relied upon by the pilot which led to the field pea crop being damaged by spray drift.
As the pilot relied on the map, which resulted in spray drift causing considerable damage to the field pea crop, the person who drew the false and misleading map has committed an offence under Section 59(3) of the Act.
Duty of care
Any person who provides agvet chemical use information has a duty of care to ensure that:
- the information they provide is within their area of skill, expertise and employment
- the information they provide is accurate, unambiguous, qualified (if appropriate), and applicable for a specific period of time
- an accurate written record is made and kept of the information provided
- professional liability insurance is held (if appropriate).