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2d 1312
10 Envtl. L. Rep. 20,245
A review of our records for this product establish (sic ) that it does not meet
effectiveness requirements. From May 1966 to February 1974 this product has
failed to pass even one of twenty-three bio-assay efficacy tests against rats or
mice. While Animal Biology Laboratory tests show that a single-dose liquid rat
and mouse oral rodenticide should produce a minimum of 90% mortality within
72 hours to be effective, this product has produced mortality ranging from 0%
to 80% and averaging only 30.4%.
3
It is clear from the record that the elaborate proceedings which followed this
cancellation notice, like the notice itself, were based on an assumption by the
EPA that it has independent authority to establish and regulate minimum
effectiveness standards for pesticides 1 without regard to labeling or disclosure.
The proceedings resulted in a finding that Cowley failed to meet its burden of
persuasion that its poison satisfied the EPA's "effectiveness" standards or that
the standards were unreasonable.
(A) its composition is such as to warrant the proposed claims for it; (and)
(B) its labeling and other material required to be submitted comply with the
requirements of this subchapter . . . .
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Petitioner has also challenged on the merits the ninety percent efficacy standard
and testing procedures utilized by the agency. It would be premature for us to
attempt to resolve these issues until an appropriate record has been developed
pursuant to the agency's authority over misbranding rather than its erroneously
asserted authority to set effectiveness standards. A challenge has also been
raised to the procedural requirements for the adoption of the standards and to
the timeliness of action in the case below. We need not reach these issues in
light of our disposition of this case.
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REVERSED.
Subsections (C) and (D) of 7 U.S.C. 136a(c)(5) require that in order for a
pesticide to be registered, it must also produce no unreasonable adverse effects
on the environment. The EPA has made no claim that Cowley's product fails to
satisfy these subsections