In a press release dated Sept.

7, 2012, the Environmental Protection Agency (EPA) trumpeted a successful plea bargain between the Ohio U.S. Attorneys office and Scotts Miracle-Gro, resulting in the largest-ever criminal penalty under FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act).(1) In addition to a $4 million fine, Scotts will pay $500,000 divided evenly to five organizations that protect bird habitat. Scotts crime was the distribution of seventy million units of toxic birdseed to unsuspecting bird lovers, who unwittingly poisoned countless wild birds at their backyard feeders. Scotts acquired a wild bird food company in 2005, and subsequently manufactured birdseed under a variety of names. Their main brand was Morning Song, which was distributed through Wal-Mart and other retailers. From 2005 to 2008, Scotts sold over seventy million units of toxic birdseed. An additional two million units were recalled in 2008.

How toxic was the seed? A California resident, Laura Cyphert, had the misfortune of purchasing some of the seed still in circulation two years after the recall. She fed the seed to a hundred birds in her aviary and also to a dozen mice in a humane trap awaiting relocation: ninety-two of the birds died, and all of the mice. Going by the 92% kill rate in the California aviary, the number of wild birds decimated by Scotts nationwide could be astronomical. Unlike the captive birds in the aviary, wild birds would fly away to die. Nevertheless, using an extremely conservative estimate, if only one bird died for each unit of Morning Song sold, the death toll would be 70,000,000 songbirds.

Who cares about birds? Birds are big business. In 2001, the US Fish & Wildlife service published a survey (2) that counted 40 million backyard birders in the United States and 18 million active birders who travel away from home each year to observe birds. The traveling birders spend upwards of $32 billion on equipment and travel, making a significant contribution to the ecotourism economy both here and abroad. Backyard birders spend about $4 billion annually on birdseed. While it is clear that American citizens care a great deal about birds, it is not so clear that the EPA does. Current guidelines governing which poisons can be deployed in the environment favor business concerns over wildlife, as detailed in a 2013 report from the American Bird Conservancy.(3) For instance, although toxicologists at the EPA have warned the agency about the lethal effects on birds and bees of a class of pesticide called neonicotinoids, they are approved for use. Further, there is no way to detect neonicotinoid poisoning because there is no readily available biomarker, which is how the lethality of other pesticides is tracked. The report states that, It is astonishing that the EPA would allow a pesticide to be used in hundreds of products without ever requiring the registrant to develop the tools needed to diagnose poisoned wildlife. Perhaps this lack of biological marker for a commonly used agricultural seed coating is one reason a pathologist at the NY Dept. of Conservations Five Rivers Center said, We often receive dead birds for testing, but we cant always determine what killed them.

How much is a birds life worth?

Some birds are valued more than others in the eyes of the law. Killing a bird of prey, such as bald eagles or falcons, is a federal violation with severe penalties. Introduced species, such as starlings, English sparrows and monk parakeets, are not protected. In New York state, killing a songbird carries a fine of anywhere from nothing to $250, depending on the specifics of the case. Each dead bird would count as a separate violation. In the Scotts case, seventy million songbirds billed at a mere one dollar each would have resulted in a $70,000,000 fine.

A violation of trust When a bird lover purchases birdseed to place in a backyard feeder, the obvious intention is to celebrate and nourish birds. Implicit in the transaction is trust that the seller is providing a natural product that is neither rancid nor toxic in any way. In order to deter insect damage to stored seeds, Scotts coated the seed with Storcide II and Actellic 5E. The Actellic label does not warn specifically about toxicity to birds, because when used as approved, birds would not be found anywhere near it. However, the warning on Storcides label could not be clearer: Storcide II is extremely toxic to fish and toxic to birds and other wildlife.(4) Someone at Scotts made the decision to apply a substance that is toxic to birds to bird food. It wasnt until 2007 that two Scotts employees, a pesticide chemist and an ornithologist, notified upper management at different times during that year that there might be a problem. One has to wonder why it took them so long. Maybe someone finally got around to reading the label. And yet, after receiving internal warnings on two separate occasions from two employees, Scotts continued selling tainted birdseed for another six months. In March 2008, Scotts notified the EPA of what they had done, and recalled the contaminated seed.

Why did Scotts confess? In an incident unrelated to the birdseed issue, a Federal Registrations Manager at Scotts falsified EPA registrations of pesticides. As the EPA began closing in, she tried to convince the agency that they had simply lost their files. An EPA review of Scotts products revealed that there were multiple violations spanning five years, which included misbranding pesticides and false claims on labels. The civil complaint against Scotts and the subsequent plea bargain resulted in a $6 million penalty with an additional $2 million to be spent on environmental projects. The manager has apparently pled guilty in a separate trial, and Scotts has distanced themselves from this associate who acted alone. However, the manager could not have included these unapproved chemicals in numerous products all by herself. The products were already created, and that had to be done on a manufacturing level.

Perhaps because of EPA scrutiny and fearing they would be caught, Scotts volunteered that they had coated their birdseed with poison. According to the United States Attorneys Manual, voluntary disclosure can translate into reduced penalties.(5)

In an open letter on the Scotts website, Chairman and CEO Jim Hagedorn states that treating wild bird food with pest control additives is standard practice in the bird food industry and one that predated Scotts acquisition of these products from Gutwein & Co, Inc. in 2005.(6) This seems to imply that Gutwein was also using these pesticides. But if so, and if it really is standard practice, then why would Scotts bring the matter to the attention of the EPA? And why would the EPA assess a record FIFRA fine for the act?

Its all relative: a substantial fine is still just a slap on the wrist From the prosecutors perspective, the resolution of the Scotts case may seem like an unqualified success. However, it is important to consider what profit the company derived from their wrongdoing. Scotts annual sales were nearly $3 billion worldwide in 2012. Selling seventy million units of birdseed over the course of two years would surely have netted them at least one dollar per unit. With that conservative estimate amounting to $70,000,000 in profit, a $4,500,000 fine seems trivial in comparison.

As Senator Elizabeth Warren stated in a May, 2013, letter to the Department of Justice, If large financial institutions can break the law and accumulate millions in profits and, if they get caught, settle by paying out of that profit, they do not have much incentive to follow the law.

Individual bird lovers take up the slack Official failure to mete out adequate punishment for transgressions sometimes leads to vigilantism, and sometimes it leads to private legal action. According to Scotts 2012 annual report, there were four class action suits filed on and after June 27, 2012, which have since been consolidated into one case.(7) The annual report states that The Company intends to vigorously defend the consolidated action and that Given the early stages of the action, the Company cannot make a determination on whether it could have a material effect on the Companys financial condition.(8)

If ever the class action lawsuit makes it to a jury trial, the material effect on Scotts financial condition could be considerable, for what jury could decide in favor of a large corporation fobbing off poison seed on bird enthusiasts? Unfortunately, like most cases, it will probably be settled out of court. Scotts may even pony up enough money to prevent the plaintiffs from talking about it. None of that will change the dreadful fact that potentially tens of millions of beautiful songbirds died cruelly and needlessly at the hands of the adoring public who love and admire them. ___________________________________________________________________ 1 EPA press release 2 http://www.fs.fed.us/outdoors/naturewatch/start/economics/Economic-Analysis-for-Birding.pdf 3 American Bird Conservancy, The Impact of the Most Widely Used Insecticides on Birds p. 6566 4 Storcide II Label. Its interesting to note that this toxic substance is approved for use on grains intended for human consumption. 5 USAM 9-28.700 The Value of Cooperation 6 http://thescottsmiraclegrocompany.com/J_Hagedorn_09-12.pdf 7 United States District Court for the Southern District of California, In re Morning Song Bird Food Litigation, Lead Case No. 3:12-cv-01592-JAH-RBB. 8. Scotts 2012 Annual Report, p. 64