Free Download: Keller & Heckman Pesticides Alert: Reckitt Benckiser Wins Battle With EPA

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."

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