Crespo v. S.C. Johnson & Son, Inc.

• Decision Date: 28 June 2019
• Docket Number: 18-cv-06869 (ARR) (RML)
• Citation: 394 F.Supp.3d 260
• Parties: Robert CRESPO, individually and on behalf of all others similarly situated, Plaintiff, v. S.C. JOHNSON & SON, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

394 F.Supp.3d 260

Robert CRESPO, individually and on behalf of all others similarly situated, Plaintiff,

v.S.C. JOHNSON & SON, INC., Defendant.

18-cv-06869 (ARR) (RML)

United States District Court, E.D. New York.

Signed June 28, 2019

Yitzchak Kopel, Bursor & Fisher P.A., New York, NY, for Plaintiff.

James D. Arden, Sidley Austin LLP, New York, NY, for Defendant.

Opinion & Order

ROSS, United States District Judge:

Robert Crespo ("plaintiff") filed this putative class action on behalf of United States purchasers of Raid Concentrated Deep Reach Fogger ("Raid" or "the Product"), a public-health pesticide sold by S.C. Johnson & Son, Inc. ("defendant"). Raid's label makes several claims about the Product's efficacy, the manner in which it operates, and the pests it targets. Despite these representations, plaintiff alleges that the Product is entirely ineffective and that the statements contained on the label are misleading and inaccurate. He asserts claims for breach of express warranty and violations of the Magnuson-Moss Warranty Act and the New York General Business Law.¹

Defendant has moved to dismiss plaintiff's complaint, arguing that plaintiff's claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136 – 136y. In the alternative, defendant argues that plaintiff fails to state a claim upon which relief can be granted. Defendant's motion requires the court to consider the scope of express and conflict preemption under FIFRA, the nature of the pesticide registration and review process mandated by FIFRA and its interpreting regulations, and whether the Supreme Court's holding in Bates v. Dow Agrosciences LLC , 544 U.S. 431, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005), applies equally to public-health and agricultural pesticides. For the following reasons, the court concludes that plaintiff's claims are not preempted and that plaintiff's complaint meets the pleading standards of Federal Rule of Civil Procedure 12(b)(6). Accordingly, the defendant's motion is denied.

BACKGROUND

S.C. Johnson & Son, Inc., manufactures and distributes Raid, an insect fogger, throughout the United States. See Compl. ¶¶ 4, 10, 13, ECF No. 1. Raid's label claims that the Product " ‘kills ants, roaches, & spiders,’ ‘penetrates into cracks & crevices to kill bugs where they live & breed,’ and ‘keeps killing for up to 2 months.’ " Id. ¶ 2.² As an insect fogger, otherwise known as a "bug bomb," Raid releases its contents into the air after a user activates the Product. Id. ¶¶ 4, 7. Plaintiff alleges that the Product cannot reach pests that hide in "cracks and crevices" because the insecticide "gradually settle[s] onto floors, counter tops and other surfaces" after it is activated. Id. ¶¶ 7–8. Plaintiff also alleges that cypermethrin, Raid's active ingredient, fails to effectively exterminate pests, because insects—including the ants, roaches, and spiders that Raid purports to target—"quickly build up a resistance to [the] chemical." Id. ¶ 9.

In November 2016, plaintiff purchased Raid from a Lowe's store in Brooklyn, New York. Id. ¶ 12. Before deciding to buy the Product, plaintiff "carefully read the Raid labeling." Id. Relying on the representations contained on the label, he "believed ... that Raid would kill ants, roaches, and spiders, and that it would effectively control and prevent these insects from home infestations." Id. Though he followed the instructions on the label, the Product "did not provide effective insect control." Id. If plaintiff had known that the Product did not work as defendant claimed, he would not have purchased Raid or, alternatively, he "would have only been willing to pay a substantially reduced price" for the Product. Id.

I. Pesticide Registration Process

Before selling or distributing a pesticide in the United States, a pesticide manufacturer must register its product with the Environmental Protection Agency ("EPA"). See § 136a(a), (c). As part of the registration process, an applicant must file a statement with the EPA that includes several pieces of information, including "a complete copy of the labeling of the pesticide, a statement of all claims to be made for it, and any directions for its use" and "a full description of the tests made and the results thereof upon which the [label's] claims are based." § 136a(c)(1)(C), (F). FIFRA defines "label" as "the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers." § 136(p)(1). FIFRA's regulations mandate the disclosure of certain information on the pesticide's label, including the pests targeted by the product, the "method of application," and the "frequency and timing of applications necessary to obtain effective results without causing unreasonable adverse effects on the environment." 40 C.F.R. § 156.10(a)(1)(viii), (i)(2)(iii)–(vi).

Though all pesticide manufacturers must conduct studies to support the efficacy-related claims made on their products' labels, the statute authorizes the EPA to use its discretion to "waive data requirements pertaining to efficacy." § 136a(c)(5); see also Office of Pesticide Programs, Envtl. Protection Agency, Label Review Manual 4-8 [hereinafter Manual ], https://www.epa.gov/sites/production/files/2018-04/documents/lrm-complete-mar-2018.pdf (last updated March 2018).³ Pursuant to this authority, the EPA has waived the required submission of efficacy data for most products. See Manual, supra , at 4-8. There are, however, several categories of pesticides for which the EPA continues to require the submission of efficacy data before a product can be registered. Id. at 4-8 to 4-9. Relevant to this motion, manufacturers of invertebrate-control pesticides—defined as "[p]roducts intended for use ... in premises or in the environment to control pests of sanitary or public health significance such as ... poisonous spiders, fire ants [and] cockroaches," id. at 4-8—are obligated to submit data to the EPA that demonstrates that the product "warrant[s] the [manufacturer's] proposed claims for it," § 136a(c)(1)(F), (5)(A). The EPA reviews the data submitted by the applicant and, on that basis, determines whether the efficacy claims made on the label are adequately supported. See § 136a(c)(5)(A); 40 C.F.R. § 152.112(d) ("EPA will approve an application ... only if ... [t]he Agency has determined that the composition of the product is such as to warrant the proposed efficacy claims for it ...."), § 158.70(a).

Before a product may be registered, the EPA must receive and approve a pesticide's "final printed labeling." § 156.10(a)(6)(i). The EPA will register a pesticide after it determines, inter alia , that the applicant's claims about the product are accurate and the product's labeling complies with the requirements of the statute. § 136a(c)(5)(A)–(B). "[R]egistration of a pesticide shall be prima facie evidence that the pesticide, its labeling and packaging comply with the registration provisions of [FIFRA]." Id. § 136a(f)(2). However, "[i]n no event shall registration of an article be construed as a defense for the commission of any offense under [FIFRA]." Id. More specifically, it is a violation of FIFRA for a pesticide to be "misbranded." § 136j(a)(1)(E); see also 40 C.F.R. §§ 152.112(f), 156.10(a)(5). A pesticide is "misbranded" if its label contains any representation or claim "which is false or misleading in any particular." § 136(q)(1)(A). "Because it is unlawful under the statute to sell a pesticide that is registered but nevertheless misbranded, manufacturers have a continuing obligation to adhere to FIFRA's labeling requirements." Bates , 544 U.S. at 438, 125 S.Ct. 1788.

After registration, a manufacturer may not make any claims or representations about a pesticide that "substantially differ from any claims made for it as part of the statement required in connection with its registration." § 136j(a)(1)(B). If a registrant wishes to change a pesticide's labeling, it must apply for a registration amendment, which the EPA will approve only if it "determines that the change will not violate any provision of [FIFRA]." § 136a(f)(1).

II. Raid's Registration Process

Raid is registered with the EPA under the registration number 4822-452. Arden Decl. Ex. B, at 1, ECF No. 16-2. On May 1, 1997, the EPA accepted the Product's registration on the condition that the defendant make certain changes to the label—none of which are relevant to the claims asserted here. Id. at 1–2. In conditionally registering Raid, the EPA approved a list of proposed claims about the Product, including the claims challenged by plaintiff in this lawsuit. Id. at 3. More recently, on August 21, 2013, defendant received approval from the EPA to make certain revisions to the label, but these revisions did not alter the approved efficacy claims challenged here. See Arden Decl. Ex. C, at 9, ECF No. 16-3; see also Def.'s Br. 6, ECF No. 15.

Plaintiff filed the instant complaint on December 3, 2018. See Compl. Plaintiff seeks to represent a class of all United States purchasers of Raid and a subclass of those who purchased Raid in New York. Id. ¶¶ 17–18.

STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a complaint "must contain sufficient factual matter ... to state a claim to relief that is plausible on its face." County of Erie v. Colgan Air, Inc. , 711 F.3d 147, 149 (2d Cir. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Though a plaintiff need not include "detailed factual allegations" in the complaint, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must construe a complaint liberally, "accepting all factual allegations ... as...