Pesticide companies win legal battles against counterfeits
Pesticide companies win legal battles against criminal counterfeiters and illegal traders across Europe.
In recent weeks, three pesticide companies, BASF, Bayer Crop Science and DuPont, won three separate legal battles against illegal traders and counterfeiters. The victories in Germany, Spain and Poland, reflect the determination of the industry to fight the wave of criminal counterfeiting and illegal trade that is growing across Europe.
All three companies are part of the European Crop Protection Anti-counterfeit campaign and ECPA welcomes these judgments. However, each case demonstrates the exceedingly lengthy process needed to gain convictions and the relatively light penalties passed down to criminals who endanger human health and the environment. The head of the ECPA anti-counterfeit programme, Rocky Rowe, said that industry would fight counterfeiters and illegal traders in court and by working with governments to toughen legislation at the European and national levels. He added that legitimate producers, large and small, were “determined to stem the further increase in the counterfeit/ illegal pesticide trade which is being accelerated by the reduction in pest management options posed by EU regulatory review combined with a harsh economy and unrelenting pest threats to the food supply”.
Case 1: Spanish counterfeiters found guilty of “crime against public health”
Earlier this year, three individuals, B.A.R.M, J.G.L and A.P.L, were accused and found guilty of committing “a crime against public health and a crime against consumers”. The perpetrators had commercialized several pesticides not registered in Spain without the legally required permits. They had also failed to properly label the products, which seriously impairs safe use. Some of the products were formulated with the active ingredient imidacloprid, a product registered by Bayer Crop Science.
The judge sentenced them to two fines (one for each one of the crimes committed) and specifically barred them from working with pesticides. Bayer Crop Science's Global Product Defence Manager Gerwin Bouillon said, “The sale of these illegal products not only violates Bayer Crop Science's rights, but also presents unacceptable risks to crops, the environment and the health of farmers and consumers. The judge clearly attached great importance to the public health risk these criminals created”.
Case 2: BASF wins legal injunction against Realchemie in Germany
Following a lengthy court case against Realchemie Nederland B.V. (Case No 4 a 0 315/06, Düsseldorf District Court) BASF won a decision regarding illegal parallel import. In Germany, Realchemie had imported under parallel import rules, and sold 45,420 litres of a product purportedly identical to the BASF rape herbicide Nimbus CS. The market value of such a large amount of the BASF reference-product is approximately €1.5 million. Realchemie claimed that the product was chemically identical to Nimbus CS, but it was found not to be of BASF origin.
BASF subsequently filed and won a preliminary injunction for a patent infringement over the use of monoclinic metazachlor found only in Nimbus CS. Following a preliminary injunction, a final ruling was made in 2008 in favour of BASF and more recently Realchemie was instructed to destroy the whole consignment. Klaus Welsch, Group Vice President of BASF, commented, “We favour strong competition, but we believe the onus should be on the Government to ensure only legitimate products of high quality are sold to farmers, even those available through parallel trade”.
Case 3: Polish court fines and sentences counterfeiter
Similar actions and results were achieved by DuPont in Poland this year. Following investigation by the Public Prosecutor's Office in Wabrzezno, charges were filed in the District Court in Golub-Dobrzy against Sergey Y. for selling counterfeit products based on DuPont technology.
The court case lasted for almost two years, with the result that the defendant was convicted of the crime of marketing counterfeit pesticides. The court awarded substantial damages to DuPont, a suspended custodial sentence on the guilty party and the prohibition to trade in crop protection products for three years. Tom McHale, DuPont Anti-counterfeit Manager said: “This is part of an ongoing DuPont Crop Protection stewardship programme, which promotes high quality standards and safe use of crop protection products, to protect the farmer and his or her business; the environment; and safety of the food supply".
