ELR Citation: ELR 20368
No(s). 71-1112 (7th Cir. May 11, 1972)

An economic poison is not "misbranded" under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 7 U.S.S. §§135-135k, if, when used according to the directions on the label, no harm will result. The rule announced in Environmental Defense Fund v. Ruckelshaus, 1 ELR 20059 (D.C. Cir. 1971), calling for an intricate balancing between the foreseeable hazards of use of a product and its expected benefits is correctly applied when an economic poison can cause harm even when used in compliance with its directions. In the case of the phosphorus paste roach and rat killer, harm will result only if consumers do not follow directions. While the Administrator might properly refuse to register a products whose label was confusing or misleading to the ultimate consumer, a standard requiring that no accidents will happen is too strict. Cancellation orders must be set aside.

Counsel for Petitioner
Mrs. Esther O. Kegan
Kegan, Kegan & Berkman
79 W. Monroe Street
Chicago, IL 60603

Counsel for Respondent
Charles B. Fielding Office of the General Counsel
Environmental Protection Agency
Washington, DC 20460

Alan S. Rosenthal
Robert E. Kapp
Department of Justice
Washington, DC 20530

Before KILEY, FAIRCHILD, and STEVENS, Circuit Judges.