PESTICIDES/FIFRA: DESCRIPTION

McKenna Long & Aldridge LLP has the oldest, largest, and most diversified pesticide regulatory and litigation practice in the United States and internationally. Our pesticide regulatory and litigation practice group includes 20 attorneys in Washington, DC, California, Brussels and Atlanta. Six senior pesticide attorneys bring over 150 years of experience to clients. Our Brussels office enjoys the oldest and largest pesticide practice in the European Union.

The successful resolution of complex pesticide issues often requires a team of lawyers and regulatory scientists. Our consulting subsidiaries, Technology Sciences Group (TSG) (Washington, DC, Davis, CA and Ottawa, Canada), TSGE (Knaresborough, UK and soon Barcelona, Spain), and MTD Ventures LLC (Washington, DC), with a combined staff of 30 scientists and regulatory experts, provide scientific, registration, regulatory and litigation support services in the United States, Canada, Europe and Asia.

There is no substitute for our federal, state and worldwide experience. Our pesticide “firsts” are unmatched:

We first represented and counseled the pesticide industry in 1940 through our representation of the National Association of Insecticide and Disinfectant Manufacturers, the predecessor to today’s Consumer Specialty Products Association.
We represented registrants in EPA’s first cancellation hearings (on DDT, heptachlor/chlordane and diazinon); we defended the first wave of RPARs/Special Reviews (on PCNB, lindane, EDB and other active ingredients).
We represented the data submitter in the first FIFRA EPA data compensation hearing (Ciba Geigy v. Farmland Industries), and we represented the data submitter in the first data compensation arbitration (Stauffer Chem. Co. v. PPG Industries).
We participated in the United States Supreme Court’s first and only two cases on FIFRA data compensation (Ruckelshaus v. Monsanto Co. and Stauffer Chem. Co. v. PPG Industries).
Our Brussels office first counseled companies on the EU Plant Protection Directive (91/414/EEC) and the EU Biocidal Products Directive (98/8/EEC); we successfully challenged a member state’s (Denmark’s) efforts to cancel a pesticide (esfenvalerate).
We represented the pesticide and pest control industries as amici curiae in the first United States Supreme Court case on FIFRA preemption of local regulation of pesticides (Wisconsin Public Intervenor v. Mortier).
We helped form in 1979 and represent the first pesticide task force, The Industry Task Force on 2,4-D Research Data.
We represented industry in its first challenge to California’s data requirements in 1980 (National Agricultural Chemicals Association v. Rominger). We successfully defended California’s ownership laws and letter of authorization process on behalf of pesticide data submitters (Chemical Producers and Distributors Association v. Helliker). We brought suit against California’s Department of Pesticide Regulation (“DPR”) to enforce the Data Ownership Laws and Letter of Authorization process (Syngenta Crop Protection, Inc. v. Helliker; Dow AgroSciences, LLC v. Helliker).
We challenged a New York agency’s attempt to use rulemaking to ban high concentration DEET products.
We were the first to convince a federal court of appeals that FIFRA preempts failure-to-warn claims (Papas v. Upjohn Co.), represented industry as amici curiae in the first Supreme Court case on FIFRA tort preemption (Bates v. Dow AgroSciences LLC), and are advising the industry on the Bates aftermath.
We were the first US firm to represent a pest control product (lindane) before a review board in Canada convened under the Pest Control Products Act.
We founded one of the first pesticide and chemical consulting firms, Technology Sciences Group (“TSG”), in 1990 and thereafter established its European counterpart, TSGE.
We wrote the first book on pesticide regulation, The Pesticide Regulation Handbook, in 1983 and we conducted the first client seminars on pesticide regulation.

Our unique experience and resources enable us to offer services in the following areas:

Registration and Cancellation: Getting and Keeping Your Registration

Pesticide registration under FIFRA requires that a pesticide’s benefits outweigh its risks. Cancellation, classification or labeling restrictions are triggered when EPA alleges that a pesticide’s risks are unreasonable. The Food Quality Protection Act requires EPA to assess a pesticide residue tolerance’s aggregate and cumulative risks. We bring science, law and policy together to resolve tough registration and tolerance issues. We have represented numerous registrants in suspension, cancellation and RPAR proceedings and negotiated cancellation agreements.

Data Compensation: Protecting Your Investment, Minimizing Your Liability

For the data submitter, pesticide registration data are costly. For the follow-on applicant, previously submitted data may pose a significant hurdle to entering a market, as well as a major liability. For over 25 years, we have represented data submitters and applicants in data compensation negotiations and arbitrations. With our experience, we will assist you to prepare or to respond to a data compensation claim in order to resolve disputes before they go to arbitration. As well, we have represented many petitioners and respondents in Petition To Cancel or Deny proceedings under 40 CFR § 192.99.

Enforcement: Defending Against EPA Penalties and Stop Sale Orders

EPA and states enforce pesticide laws through misbranding and differing claims and composition actions that seek significant civil penalties. EPA and state enforcement actions may lead to disruptive stop sale orders. We have significant experience in applying FIFRA’s Enforcement Response Policy to reduce the cost and potential disruption of enforcement proceedings. Together with TSG, we will conduct or assist your company to conduct FIFRA systems and compliance audits (with the benefit of EPA’s Audit Policy) to spot problems before the inspector shows up.

Task Forces: Reducing the Cost of Data Development Through Cooperative Cost Sharing

Pesticide Task Forces develop data required by EPA and EU authorities to reregister pesticides. For over 25 years, we have represented many US and EU task forces: The 2,4-D Task Force, The MCPA Task Force, The DEET Joint Venture, The ADBAC and Quat Joint Venture, The Pyrethrin Joint Venture, The Spray Drift Task Force and The Non-dietary Exposure Task Force. Pesticide task forces face corporate, tax, data compensation and EPA reregistration issues.

Commerce Between Pesticide Companies

We regularly assist companies in negotiating, drafting and resolving disputes under supply contracts. We assist companies in licensing and protecting technology and pesticide data rights worldwide. We assist companies in forming domestic and foreign joint ventures.

Special Pesticides: GMOs, Biopesticides and Antimicrobials

Special pesticides require special knowledge. EPA’s Office of Pesticide Programs has special divisions and policies for biopesticides and antimicrobial pesticides. We have counseled and represented companies that make special pesticide products including treated articles, repellents, wood preservatives, plant protectants (GMOs), antimicrobials, aquatic herbicides, seed treatments, pet care products, aerosol products and pesticide devices. Through our representation of CropLife America we know agricultural pesticides. Through our representation of the Consumer Specialty Products Association we know the important issues confronting manufacturers and distributors of household, institutional and industrial pesticides.

Pesticides and the Courtroom: Product Liability Defense and Prevention

We have advised and defended numerous companies in pesticide personal injury, crop damage and environmental contamination cases at the trial and appellate levels throughout the United States. This includes more than 100 cases raising FIFRA preemption. We counsel pesticide companies in avoiding failure-to-warn liability and FIFRA preemption strategy in the wake of the Supreme Court’s 2005 decision in Bates v. Dow AgroSciences LLC. We counsel companies on the product liability issues surrounding labeling, warranties, advertising and sales promotion, company correspondence and records and customer complaints.

Beyond FIFRA: Other Federal and State Laws

Pesticide regulation extends beyond FIFRA. Increasingly, pesticide manufacturers and users are facing attacks under such laws as the Endangered Species Act, the Clean Water Act and California’s Proposition 65. We have counseled and represented manufacturers and users on challenges arising under these laws.

Beyond the Beltway: State, Local and International Regulation

California

We have offices in Los Angeles, San Francisco and San Diego; TSG has offices in Davis, California. Together we are the pre-eminent firms in resolving legal, regulatory, science and legislative issues arising from the manufacture, distribution, sale and use of pesticides in California. We regularly counsel and represent pesticide manufacturers and distributors before California’s Department of Pesticide Regulation. We have represented companies in citizen suits brought by environmental advocacy groups to cancel registrations.

We successfully defended the State’s data ownership laws and letter of authorization process on behalf of pesticide data submitting companies in Chemical Producers and Distributors Association v. Helliker, and we successfully brought suit against DPR to enforce the Data Ownership laws and letter of authorization process in Syngenta Crop Protection, Inc. v. Helliker and Dow AgroSciences, LLC v. Helliker. We have represented pest control operators before the California Structural Pest Control Board, and pesticide manufacturers and distributors in product liability cases in California courts.

Europe, Canada and Asia

Our Brussels office counsels and represents pesticide companies on EU Directive 91/414/EEC, the Biocidal Products Directive, REACH and member state laws and regulations. We have defended companies in response to member state efforts to restrict or cancel pesticide registrations. TSGE has offices in Knaresborough, UK, and is expanding to Barcelona, Spain.

TSG has offices in Ottawa, and we have represented companies in administrative hearings before Health Canada’s Pest Management Regulatory Agency.

We counsel companies on registration requirements in China and Japan. We have a liaison office in Tokyo and Osaka, Japan, through Okano & Company.

Our attorneys and specialists regularly lecture in China and counsel companies on China’s pesticide data requirements in consultation with officials of the Institute for Control of Agrochemicals, Ministry of Agriculture in Beijing. We have counseled and represented companies in the formation of joint ventures between US and Chinese pesticide companies. Our consulting affiliate, MTD Ventures LLC, is dedicated to helping pesticide companies do business in China and source products from China. Our pesticide practice group includes an attorney admitted to practice law in China and the US and who worked six years as an in-house attorney for chemical companies in China.