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D-Con Co. v. Allenby

United States District Court for the Northern District of California

 November 9, 1989, Decided ; November 13, 1989, Filed

No. C 89 0332-FMS



Plaintiff, d-Con Company (d-con), moves for partial summary judgment, seeking a declaratory judgment that the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq., (FIFRA), preempts defendants from imposing warnings under California's Safe Drinking Water and Toxic Enforcement Act, better known as Proposition 65 (Prop 65). Plaintiff also challenges Prop 65 on Commerce Clause grounds, but did not address that claim in this motion.

Defendants filed a cross-motion for partial summary judgment and a motion to transfer the case to the Eastern District of California. Having duly considered all pleadings and heard the arguments of counsel, this Court hereby GRANTS defendant's motion for partial summary judgement.


In 1986, California voters enacted Proposition 65. The portion of Prop 65 at issue in this case is contained in California Health and Safety Code § 25249.6:

] No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual  [**2]  . . . .

Section 25249.11(f) further provides:

] "Warning" . . . need not be provided separately to each exposed individual and may be provided by general methods such as labels on consumer products, inclusion of notices in mailings to water customers, posting of notices, placing notices in public news media, and the like, provided that the warning accomplished is clear and reasonable.

The California Health and Welfare Agency issued regulations which define the acceptable ways of giving "clear and reasonable warning" pursuant to Prop 65. Adopting a "safe harbor" format, the regulations identify certain methods of providing warnings for consumer products that are "deemed to be clear and reasonable", but do not preclude other warning methods. Among the safe harbor methods are product labeling and "shelf labeling, signs, menus, or a combination thereof." (§ 12601(b)(1)(B)). 1

FIFRA is a comprehensive federal regulatory scheme for registration of pesticide labels administered by the Environmental Protection Agency (EPA). Pesticide manufacturers must design labels in accordance  [**3]  with FIFRA guidelines and submit them for approval by the EPA.

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728 F. Supp. 605 *; 1989 U.S. Dist. LEXIS 16704 **; 20 ELR 20629

D-CON COMPANY, INC., Plaintiff, v. CLIFFORD L. ALLENBY, et al., Defendants

Disposition: GRANTED; DENIED.


labeling, pesticide, preempts, partial, safe, packaging, D-Con's, notices, harbor, consumer, expose

Environmental Law, Hazardous Wastes & Toxic Substances, Toxic Substances, Business & Corporate Compliance, Environmental Law, Federal Insecticide, Fungicide & Rodenticide Act, Governments, Agriculture & Food, General Overview, Pesticides