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Continental Chemiste Corp. v. Ruckelshaus

Citation: 2 ELR 20209
No. No. 71-1828, 461 F.2d 331/4 ERC 1181/(7th Cir., 05/11/1972)

An economic poison is not "misbranded" so as to require the cancellation of its registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), although its use in compliance with the directions on its label will cause certain food to become "adulterated" within the meaning of the Food, Drug and Cosmetic Act (FDCA). As long as a product's label includes instructions for its use which are "adequate to protect the public" and sufficient to "prevent injury to living man", its registration for shipment in interstate commerce under FIFRA may not be cancelled. Although the product's use may result in residues on food for human consumption or may cause the economic poison to be added to food so as to adulterate that food within the meaning of the FDCA, Congress did not intend the statutory test for adulteration to control registration determinations under FIFRA. EPA is not foreclosed from coordinating its implementation of the two regulatory programs so as to determine tolerance limits for chemical residues on food under FDCA in the same proceeding as that in which the right to registration under FIFRA is adjudicated. The EPA Judicial Officer's cancellation of the registration of petitioners' products containing lindane in reliance upon the fact that the Food and Drug Administration had not established a tolerance for lindane residues on food for human consumption under FDCA is set aside.

Counsel for Petitioners
John M. Noelmann
D. Kendall Griffith
D. Patterson Glorr
1 North La Salle Street
Chicago, Illinois 60602

Louis A. Mclean
525 Happ Road
Northfield, Illinois 60093

Counsel for Respondents
Michael C. Farrar Asst. General Counsel
Thomas Kemp Attorney
Environmental Protection Agency
401 M Street, SW
Washington, D.C.

Before HASTINGS, Senior Circuit Judge, KILEY and STEVENS, Circuit Judges.