New York State Pesticides Coalition v. Jorling
Citation: 19 ELR 20859
No. No. 89-7143, 874 F.2d 115/29 ERC 1602/(2d Cir., 05/10/1989) Aff'd
The court holds that New York's Pesticide Notification Program, which imposes notification requirements on commercial pesticide applicators, is not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). New York requires commercial pesticide applicators to use written contracts, provide a list of chemicals to be applied along with warnings from the pesticide's Environmental Protection Agency approved label, supply "cover sheets" with further warnings and safety information, post signs on the perimeter of the affected property instructing persons not to enter the area for a 24-hour period, and where large tracts are affected, notify the public through newspapers. The court first holds that New York's notification requirements do not constitute "labeling" as defined in FIFRA § 2(p), and are thus not preempted under FIFRA § 24(b). The notification materials do not "accompany" the pesticide within the meaning of § 2(p). Labeling is better understood by its relationship, rather than its proximity, to the product. Statements similar to the warnings on labels are not barred by FIFRA. A FIFRA label is generally attached to the immediate container and expected to remain affixed during the period of use. In contrast, the target of the New York notification program is the general public who may unwittingly happen upon an area where strong poisons are present, as well as those who contract to have pesticides applied. The court holds that because New York's program is not one of labeling, it is not preempted by FIFRA § 24(b).
[The district court decision is published at 19 ELR 20728.]
Counsel for Plaintiffs-Appellants
Thomas S. West, Ruth E. Leistensnider
Nixon, Hargrave, Devans & Doyle
One KeyCorp Plaza, Albany NY 12207
Counsel for Defendant-Appellee
Martha McCabe, Ass't Attorney General
Department of Law, State Capitol, Albany NY 12224
Before Pratt and Miner, JJ.