U.S. Court of Appeals Affirms Kansas Termite Control Regulation

On July 3, a U.S. Court of Appeals upheld the previous District Court ruling rejecting a challenge to Kansas pre-construction pesticide treatment regulations. In Schoenhoffer v. McClaskey the plaintiff, a licensed pest control applicator in Kansas, challenged Kan. Admin. Regs. 4-13-26 (2003) on the grounds that it required excessive pesticide treatments in preconstruction applications, specifically requiring both a horizontal and vertical chemical barrier.  The plaintiff characterized the need for both horizontal and vertical barriers as unnecessary and harmful to the consumer because of excessive use of hazardous pesticides and increased costs for treatments.

The plaintiff contended (among a Sherman Act claim) that the EPA-approved label for preconstruction pesticides preempted the Kansas regulation pursuant to the Federal Insecticide Fungicide and Rodenticide Act (FIFRA). FIFRA designates the authority for the sale and use of pesticides to states, but demands exclusive federal authority for labeling in furtherance of national uniformity. The plaintiff asserted that the Kansas regulation was in direct conflict with the EPA-approved label and therefore preempted.

The court held that the Kansas regulation was not in conflict, nor did it alter the label but rather it regulated the use of pesticides while the EPA-approved label stated that the use for preconstruction treatments may require horizontal or vertical barriers. Because the EPA-approved label permits either horizontal or vertical barriers, a regulation requiring both is not altering the label but rather regulating the use and not in violation of treatment directions provided on the label. There is nothing in FIFRA that prohibits a state from prescribing stricter pesticide use regulations.

The Kansas Pest Control Association has been involved in the case since the lower court proceedings, and considers the final outcome a victory against a plaintiff applicator that was mischaracterizing the pest control industry as unethical and the pesticides used by the industry as dangerous.