ELR Citation: ELR 20001
No(s). 05-3033 (7th Cir. Dec 23, 2005)

The court holds that a Wisconsin state statute that forbids a city or county to regulate pesticides does not preempt a local ordinance forbidding the sale or use of phosphorous-containing fertilizers. Producers and suppliers of "weed and feed" lawn care products, which contain both an herbicide and a phosphorous-containing fertilizer, argued that their product was a pesticide and, thus, could only be regulated by the state. State law, however, provides that weed and feed products are both a pesticide, which only the state can regulate, and a fertilizer, which local governments can regulate. This dual definition is necessary to avoid a regulatory loophole that would allow manufacturers to mix their pesticides with fertilizers to avoid pesticide regulation or to mix their fertilizers with pesticides to avoid fertilizer regulation. And although the weed and feed producers and suppliers complain that they have to reconstitute their product in the county at issue, they have presented no evidence that such reconstitution is infeasible or even that it is costly.