Court Revives Rat Poison Maker’s Suit Against EPA

     (CN) – The D.C. Circuit has reinstated a rat poison maker’s challenge of the government’s threat to deem its products “misbranded” unless it complies with new marketing restrictions.

     The federal appeals court reversed a federal judge’s dismissal of the case for lack of jurisdiction, saying the judge can review the case under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
     The lawsuit targets the Environmental Protection Agency’s interpretation of its FIFRA authority to misbrand products — “final agency action” that’s reviewable in court, according to the D.C. Circuit.
     In May 2008, the EPA sought to minimize the exposure of children and wildlife to rodent poisons by limiting how the products could be advertised and sold. Rat poison with one or more of 10 active ingredients had to be sold in bait stations and were subject to weight, labeling and distribution restrictions. Certain potent formulas could not be marketed to general consumers for residential use.
     After issuing the regulations, the agency told Reckitt Benckiser Inc., which produces d-CON rat poison products, to change its formulas or face having the products misbranded.
     Bensicker refused to comply, saying this threat deprived it of the ability to challenge a cancellation decision, as a product must first be canceled in order to be challenged.
     Bensicker sought speedy cancellation proceedings so it could administratively appeal.
     The D.C. Circuit said the EPA’s misbranding threat can be considered final administrative action, as it was definitive, with direct and immediate effects on business. Bensicker claimed it would be forced to spend hundreds of thousands of dollars on research and development to meet the EPA’s new demands.
     The action puts the company between a rock and a hard place, the court noted, as it’s faced with the choice to lose sales, engage in costly compliance or risk penalties for not complying.
     The court directed the federal judge to address whether the EPA correctly interpreted its authority to misbrand Bensicker’s products “before, or rather than, regulatory cancellation proceedings.”
     The D.C. Circuit also dismissed claims that the EPA’s actions were arbitrary and capricious under the Administrative Procedure Act.

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