The U.S. Court of Appeals for the District of Columbia Circuit has reversed a district court ruling that found no subject matter jurisdiction in a complaint related to an EPA risk mitigation decision (RMD). Reckitt Benckiser, Inc. v. EPA, No. 09-1314 (D.C. Cir. 7/16/10). In 2008, EPA issued an RMD for 10 rodenticide chemicals and notified plaintiff that its registered products would be considered misbranded on June 14, 2011, unless reformulated. After declining to make the changes requested, plaintiff stated its intention to challenge the RMD through the registration cancellation procedures under FIFRA sections 6 and 7.

When EPA failed to expeditiously start cancellation proceedings, plaintiff sought declaratory and injunctive relief on the ground that the agency lacks authority “to commence enforcement proceedings for misbranding against the company’s non–RMD-conforming products without first cancelling their registrations.” EPA, however, maintained that its decision to treat noncompliant products as misbranded “is neither final agency action nor ripe for review.”

In reversing the district court, the appeals court held that EPA’s argument “fails to address the finality of EPA’s interpretation of FIFRA as allowing it to bypass Section 6 cancellation proceedings in the implementation of the RMD.” According to the court, a pesticide product remains registered until EPA or the registrant cancels it under section 6 or 7 or FIFRA. The court has remanded the matter to the district court for a decision on the merits.