pdf

Pesticides Alert: Reckitt Benckiser Wins Battle With EPA

Date: Feb 03, 2011

On January 28, 2011, the United States District Court for the District of Columbia ruled that Congress did not intend to give the United States Environmental Protection Agency (EPA) the authority under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) to bring a misbranding action in lieu of a cancellation proceeding. (Reckitt Benckiser, Inc. v. Lisa P. Jackson, Civ. No. 09-445(ESH) (D.D.C. 2011).) To put the opinion in proper context, a short summary on FIFRA is provided.

FIFRA requires that all pesticide products sold or distributed in the United States be registered with the EPA. A pesticide product remains registered until EPA or the registrant cancels it pursuant to Section 6 of FIFRA. EPA may commence cancellation proceedings if it appears that a pesticide or its labeling does not comply with the relevant provisions of FIFRA, or if it causes unreasonable adverse effects on the environment. Under FIFRA, EPA can either issue a notice of intent to cancel the registration or issue a notice of intent to hold a hearing to determine whether or not a registration should be so canceled. EPA also has the authority to bring enforcement actions for unlawful acts, such as the distribution or sale of misbranded pesticides. When EPA concludes that a pesticide is misbranded in violation of FIFRA, it may issue a written or printed ‘stop sale, use, or removal' order, commence an in rem seizure action against the pesticide product; and seek civil or criminal penalties. In 1988, Congress enacted FIFRA Section 4, which establishes the procedures for the re-registration of pesticides whose active ingredients were first registered before November 1, 1984. If the EPA determines that a pesticide should not be reregistered, FIFRA provides that EPA "shall take appropriate regulatory action."

Plaintiff Reckitt Benckiser, a manufacturer of pesticides, was issued a "Risk Mitigation Decision for Ten Rodenticides" (RMD) by EPA, pursuant to FIFRA Section 4's re-registration process. The RMD asked Plaintiff to indicate whether it intended to amend the registration of its pesticides to conform to the risk mitigation decision. If not, Plaintiff was asked to voluntarily cancel the particular product under FIFRA. EPA sent out a form that gave Plaintiff the option to either select an "intended method for complying," including voluntary cancellation, or to select the option indicating that it did not intend to comply with the RMD. The latter option was accompanied with the statement indicating that the Plaintiff "understand[s] that EPA may pursue additional regulatory action, including cancellation."

Plaintiff filed a response for its thirteen affected products indicating that it did not intend to comply with the RMD. Plaintiff requested the EPA to commence the administrative process by issuing a Notice of Intent to Cancel the registrations for Plaintiff's products under FIFRA Section 6. EPA responded that it had no plans to initiate the cancellation proceedings.

Plaintiff sued, seeking declaratory and injunctive relief that would prevent EPA from bringing misbranding or other enforcement actions against plaintiff's affected products until the procedures of FIFRA Section 6 had been initiated and completed. The Court first dismissed Reckitt's suit, finding the U.S. Court of Appeals for the D.C. Circuit had exclusive jurisdiction. The appellate court returned the case, asking the district court to decide whether EPA has the authority under FIFRA to bring misbranding actions before holding cancellation hearings.

Siding with Plaintiff, the Federal district court held that EPA had no such authority, granted Plaintiff's motion for summary judgment, and enjoined EPA from bringing enforcement actions against Plaintiff or any of its products until EPA completes the administrative cancelation procedures required by FIFRA Section 6. In so holding, the Court noted that Section 6 establishes "a detailed, multi-step process that EPA must follow when it wants to cancel or suspend a registration."

The Court noted that if EPA is permitted to bring misbranding enforcement actions against the registered products based on non-compliance with the RMD, the EPA "will be able to ‘bypass[] cancellation proceedings' and ‘effec[ively] cancel[] the registrations without following the regulatory procedures provided in Section 6." "To interpret FIFRA to give EPA that authority not only renders Section 6 superfluous; it also allows EPA to avoid the rigorous cancellation process Congress provided for in the statute." The Court concluded that "the existence and contents of Section 6 is strong evidence that Congress intended EPA to use Section 6, not the threat of a misbranding enforcement action, to remove a product from the market if it determines that the product is no longer eligible for registration."

The opinion is an important victory for manufacturers of pesticides because it prevents EPA from threatening registrants with criminal or civil enforcement actions if they fail to comply with EPA's demands to restrict, or remove, a product from the market. The ruling requires the EPA to hold a cancellation hearing which will allow a manufacturer to present evidence to support its product.

For more information on this decision and other litigation matters please contact Daniel Herling at herling at herling@khlaw.com or Leyla Mujkic at mujkic@khlaw.com in San Francisco, California. For more information on matters relating to FIFRA and other Pesticides issues please contact Herbert Estreicher at estreicher@khlaw.com.