Developing First Amendment Protections for Pesticide Brand Names, Label Statements and Product Claims

Telisport Putsavage
Wright & Sielaty, PC
Lake Ridge, VA

Several recent developments in First Amendment law have ramifications for pesticide brand names, label statements and product claims. Over the past 15 years, the U.S. Supreme Court has decided a series of cases that significantly limit government regulation of business advertising and communications. Under the rubric of commercial free speech, the Court has provided increasing protection for communications that regulatory agencies have attempted to prohibit under the guise of protecting the public from misleading or deceptive statements. According to the Court, an agency seeking to limit commercial speech must demonstrate through objective evidence that such speech is inherently misleading. If the speech is not inherently misleading, the agency must allow the speech. If the agency contends that the speech, although true, is potentially misleading, the burden is on the agency to craft or accept a qualifying statement that cures the potential to mislead.

Lower courts have begun to apply Supreme Court precedents to pesticide issues. A recent pesticide-related case was decided in Colorado and involved products produced by Bioganic Safety Brands, Inc. Bioganic produces various insecticides and insect repellents that are exempt from federal registration under 40 C.F.R. § 152.25 as minimum risk pesticides, or so-called "25(b)" products. The Bioganic product at issue bears the label statement "Safe for Kids" with associated qualifying statements. Because EPA's prohibitions on safety-related claims or non-qualitative or comparative statements as to the safety do not apply to 25(b) products, Bioganic's label statement "Safe for Kids" is permitted under federal law. Although federal registration is not required, the State of Colorado requires registration of minimum risk products, and applies its false and misleading statute to such products. Under that statute, all safety statements related to pesticides made through any media are per se false and misleading. Consequently, Colorado refused to register the Bioganic products.

In the case Bioganic Safety Brands Inc. v. Ament, 174 F. Supp. 2d 1168 (D. Colo. 2001), the U.S. Federal District Court for Colorado overturned Colorado's blanket designation of all such statements as misleading. The Court found that the statement was not inherently misleading, and that any potential for misleading consumers was mitigated by the qualifying statements also appearing on the label. Therefore, the statement is protected commercial speech under the First Amendment and cannot be prohibited by the state.

This case is part of a larger developing landscape expanding the application of the First Amendment to advertising and claims pertaining to highly regulated products. This spring, in Thompson v. Western States Medical Center, 70 U.S.L.W. 4275 (Apr. 29, 2002), the Supreme Court struck down a provision of the Food and Drug Act that limited certain advertising by pharmacists. In an earlier case, Pearson v. Shalala, 164 F.3rd 650 (D.C. Cir. 1999), the Court of Appeals for the District of Columbia Circuit overturned a Food and Drug Administration (FDA) prohibition on certain claims for nutritional supplements, finding that with appropriate qualifying statements the claims were not misleading and thus protected. As a result of these cases, FDA has recently undertaken a broad request for public comment to address the application of the First Amendment to the entirety of FDA's rules regarding claims and advertising.

These cases have broad ramifications for pesticide claims. In addition to U.S. Environmental Protection Agency (EPA) restrictions on label and related statements, many states join Colorado in regulating such statements, notwithstanding the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) prohibition on state regulation of labels. We have seen instances where state regulators have required changes to the color of a federally-approved label, as well as more substantive changes that go beyond the scope of a state's authority under the U.S. Constitution and FIFRA. Attempts by a state to regulate the content of federally approved labels hinder the ability of companies to develop nationally uniform labels and marketing strategies. Such limitations are often premised upon general deceptive advertising statutes as well as pesticide laws.

The potential for conflicts is especially high for minimum risk products. While EPA exempts such products from registration and has relaxed its limitations on claims and labeling, the majority of states have not. Approximately 37 states require minimum risk products to be registered and apply the same limitation on claims and statements as are imposed on standard products.

The First Amendment provides no protection for statements that are false or inherently misleading. Courts have become increasingly unwilling to accept agencies' unsubstantiated assertions that various prohibited statements are inherently misleading, however, and instead are forcing agencies to recognize qualifications that remove the likelihood that any reasonable person would be mislead. EPA's rules on labeling characterize all statements with respect to product safety as inherently misleading, with or without qualifying statements. Under the developing case law, EPA's refusal to allow qualifications that could remove the potential for true statements to mislead is vulnerable to a challenge.

Commercial free speech implications also arise in the context of the current efforts underway at EPA to further regulate brand names. The public comment period recently closed on the draft Pesticide Registration (PR) Notice 2002-X addressing False or Misleading Pesticide Product Brand Names. While EPA's focus in that draft notice is on statements that are inherently misleading, it remains to be seen whether the final PR Notice and its implementation retain that narrow focus.