UNITEDSTATES ENVIRONMENTALPROTECTION AGENCY REGION5 77 WEST JACKSONBOULEVARD b CHICAGO,IL60604-3590 2011JAN—6P113:20
REPLYTO THEAUENTION OF: Via UPS Overnight Delivery C-14J
January 6,2011
Honorable Barbara A. Gunning Office of Administrative Law Judges U.S. Environmental Protection Agency Mail Code 1900L 1099 l4tl Street, NW, Suite 350 Franklin Court Washington, D.C. 20005
Re: In the Matter of Liphatech, Inc. Docket No. FIFRA-05-2010-0016
Dear Judge Gunning:
Pursuant to your Order of December 29, 2010, please find enclosed a copy of Complainant’s First Amended Complaint, which was filed on January 6, 2011, in the above referenced-matter. The enclosed Complainant’s First Amended Complaint is identical in substance to the proposed pleading attached to Complainant’s Motionfor Leave to Amend the Complaint, filed on October 1, 2010, except for the following changes: (1) the docket number for the above-referenced matter is included in the First Amended Complaint; (2) the undersigned is substituted for Ms. Cynthia King (page 99 of the First Amended Complaint); (3) Mr. Bruce F. Sypniewski is substituted for Ms. Margaret M. Guerriero (page 102 of the First Amended Complaint); and (4) the enclosed First Amended Complaint includes attachments. Sincerely, _—
Gary . teinb uer Assista gional Counsel
Enclosure cc: Mr. Michael H. Simpson (w/ enclosure) Reinhart Boerner Van Deuren s.c. 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 (via UPS overnight)
RecycledlRecyclable • Printed with Vegetable Oil Based inks on 100% Recycled Paper (50% Postconsumer)
the
widespread pesticide,
of
directions
copy
registration
Milwaukee,
Division,
of
Respondent.
Milwaukee, Liphatech, ______)
In
EPA
the
uses
the
of
Federal
Matter
5.
4.
3.
2.
may
the 1.
for
when
United
for
and
which labeling
of
Inc.
Wisconsin
classify
UNITED
Wisconsin,
its
a
Insecticide,
Section
Section
The
The
This
of:
commonly applied
pesticide
use.
States
it
Respondent
Complainant
is
of
is
a
an
pesticide
registered,
3(d)(1)(C)
the
3(c)(1)(
STATES
53209,
in
Environmental
administrative
shall
accordance
pesticides,
Fungicide,
recognized
Statutory
a
file
C),
is
as
corporation
is,
ENVIRONMENTAL
or of
Liphatech,
First
“restricted
with
7
by
FIFRA,
for
U.S.C.
a
and
with
practice,
and
lawful
Protection
statement
one
the
proceeding
Amended
Rodenticide
REGION
its
Regulatory
Administrator
or
§
7
doing
) ) )
)
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Inc.
use”
delegation,
directions
136a(c)(1)(C),
U.S.C.
more
may
of
(Liphatech),
Agency
if
business
Complaint
to
all
Act,
Under
Proceeding
Insecticide, Docket
generally
of
the
5
§
assess
Act
such
claims
Background
136a(d)(1)(C),
for Administrator
ç
PROTECTION
7
the
a
(EPA),
(FIFRA),
U.S.C.
Section
use,
statement
in
uses,
No.
states a
Director
to
cause,
3600
the
civil
)ZCVD
warnings
FIFRA-05-2010-0016
to
Fungicide,
be
or Region
State
§
that
Assess
penalty
made
West
14(a)
1361(a)
in
7
without
which of U.S.C.
rV
states
determines
accordance
‘j
each
of
the
5.
Elm
AGENCY
for
of
and
Wisconsin.
a
3:20
under
Land
applicant
includes and
the
Civil
the
additional
it,
§
cautions
Street,
1361(a).
and
Administrator
Federal
Rodenticide
and
Section
that
Penalty
with
any
a
Chemicals
for
the
and
complete
a
14(a) for regulatory restrictions, unreasonable adverse effects on the environment, including injury to the applicator. See also 40 C.F.R. §ss152.170, 171 and 175.
6. Section 12(a)(1)(B) of FIFRA, 7 U.S.C. § 136j(a)(1)(B), states that it is unlawful for any person to distribute or sell to any person any registered pesticide if any claims made for it as a part of its distribution or sale substantially differ from any claims made for it as a part of the statement required with its registration under Section 3 of FIFRA, 7 U.S.C. § 136a.
7. PARAGRAPH TNTHE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
8. Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), states that it is unlawful for any person who is a registrant, wholesaler, dealer, retailer, or other distributor to advertise a product registered under FIFRA for restricted use without giving the classification of the product assigned to it under Section 3 of FIFRA, 7 U.S.C. § 136a.
9. Section 13(a) of FIFRA, 7 U.S.C. § 136k(a), states whenever any pesticide is found by the Administrator in any State and there is reason to believe on the basis of inspection that such pesticide is in violation of any of the provisions of FIFRA, or that such pesticide has been or is intended to be distributed or sold in violation of any provision of FIFRA, the
Administrator may issue a written or printed “stop sale, use, or removal” order (SSURO) to any person who owns, controls, or has custody of such pesticide, and after receipt of such order no person shall sell, use, or remove the pesticide described in the order except in accordance with the provisions of the order.
10. Section 24(c) of FIFRA, 7 U.S.C. § 136v(c), states, in pertinent part, that a State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of
2 FIFRA. Such registration shall be deemed registration under Section 3 of FIFRA, 7 U.S.C.
§ 136a, but shall authorize distribution and use only within such State. See also 40 C.F.R.
§ 162.153.
11. 40 C.F.R. § 152.168 states in pertinent part, as follows:
(a) Any product classified for restricted use shall not be advertised unless the
advertisement contains a statement of its restricted use classification.
(b) The requirement in paragraph (a) applies to all advertisements of the
product, including, but not limited, to:
(1) Brochures, pamphlets, circulars and similar material offered to
purchasers at the point of sale or by direct mail.
(2) Newspapers, magazines, newsletters and other material in
circulation or available to the public.
(3) Broadcast media such as radio and television.
(4) Telephone advertising.
(5) Billboards and posters.
(c) The requirement may be satisfied for printed material by inclusion of the
statement “Restricted Use Pesticide” or the terms of restriction,
prominently in the advertisement. The requirement may be satisfied with
respect to broadcast or telephone advertising by inclusion in the broadcast
of the spoken words “Restricted use pesticide” or a statement of the terms
of restriction.
12. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
3
preventing,
40
pertinent
aquatic
§152.5(c).
in
COMPLAINT.
for
whether
§ “means pesticide
EPA
it
FIFRA
if
136(gg),
as
pertinent
claims
C.F.R.
shipment,
part
interprets
19.
18.
pant
17.
16.
15.
14.
makes
13.
any
incorporated
part,
of
made
users
§
and
destroying,
part,
152.3,
the
individual,
or
or
“as
The
The
The
PARAGRAPH
The
it
The
animal
40
40
or
this
for
statement
receive
as unlawful
the
any
C.F.R.
C.F.R.
in
term
it
term
term
term
term
all
provision
pertinent
as
general
or
insect,
life
labels
repelling,
partnership,
part
“pesticide”
“pest” and
“labeling”
not.”
“distribute
“person”
§
§
required
for
or
152.3
168:22
of
(having
virus,
and
rodent,
public
as
any
part,
IN
its
is
extending
or
all
defined
as
THE
distribution
person
as
in
states,
is
bacteria,
as
or
mitigating is
association,
“to
have
other
so
defined
nematode,
connection
defined
defined
“any
sell”
ORIGINAL
received)
distribute,
to
in
in
access.
written,
to
is
substance
“offer
pertinent
Section
or
in
advertisements
in
defined
or
at
any
other
4
Section
fungus,
Section
corporation,
sale
Section
with
deliver
printed,
for
sell,
pest.”
COMPLAINT
2(t)
micro-organism.
differ
part,
its
in
or sale”
offer
2(s)
weed,
2(p)(2)
of
Section
mixture
2(u)
registration
or
that
or
FIFRA,
substantially
any
offer
of
for
in
or
of graphic
or
FIFRA.
Section
any
pesticide
any
of
FIFRA,
sale,
2(gg)
of
to
any
FIFRA,
REMOVED
7
deliver.”
advertising
substances
organized
under
U.S.C.
other hold matter.
.
. of 7
.“
12(a)(1)(A)
7 from
U.S.C.
if
FIFRA,
See
for
U.S.C.
7
form
FIFRA
it
§
U.S.C.
is
also
distribution,
any
group
136(t),
intended
medium
unregistered,
IN
§
of
7
§
claim
40
136(s),
Section
terrestrial
AMENDED
and
U.S.C.
136(u),
§
of
C.F.R.
in
136(p)(2),
persons
(B)
to
for
made
hold
which
3.
and
of
or
or for 20. The term “registrant” is defined at Section 2(y) of FIFRA, 7 U.S.C. § 136(y), as a person who has registered any pesticide pursuant to the provisions of FIFRA.
21. The Administrator of EPA may assess a civil penalty against any registrant, commercial applicator, wholesaler, dealer, retailer, other distributor who violates any provision of FIFRA of up to $6,500 for each offense that occurred after March 15, 2004 through January
12, 2009 and up to $7,500 for each offense that occurred after January 12, 2009, pursuant to
Section 14(a)(1) of FIFRA, 7 U.S.C. § 1361(a)(1),and 40 C.F.R. Part 19.
General Alle2ations
22. At all times relevant to the Complaint, Respondent was a “person” as defined at
Section 2(s) of FIFRA, 7 U.S.C. § 136(s).
23. At all times relevant to the Complaint, Respondent owned a place of business at
3600 West Elm Street, Milwaukee, Wisconsin, 53209.
24. At all times relevant to the Complaint, Respondent was a “registrant” as defined at Section 2(y) of FIFRA, 7 U.S.C. § 136(y).
Calendar Years 2007 and 2008
25. During calendar years 2007 and 2008, Respondent was the registrant of”Rozol
Pocket Gopher Bait II” (Alternate name: “Rozol Pocket Gopher Burrow Builder Formula”)
(hereinafter, “Rozol”), EPA Registration Number (EPA Reg. No.) 7173-244.
26. Upon registration of “Rozol,” EPA Reg. No. 7173-244, and at all times relevant to this Complaint, “Rozol,” EPA Reg. No. 7173-244, was classified as a restricted use product under Section 3(d), of FIFRA, 7 U.S.C. § 136a(d).
5 27. ‘Rozol,” EPA Reg. No. 7173-244, was classified as a restricted use product under
Section 3(d) of FIFRA, 7 U.S.C. § 136a(d), because of its potential secondary toxicity to nontarget organisms.
28. As a result of its classification as a restricted use product, “Rozol,” EPA Reg. No.
7173-244, can only be sold to and be used by Certified Applicators or persons under the direct supervision of Certified Applicators and only for users covered by the Certified Applicator’s certification.
29. During calendar years 2007 and 2008, “Rozol,” EPA Reg. No. 7173-244, was also registered under the authority of Section 24(c) of FIFRA, 7 U.S.C. § 136v(c), to control black-tailed prairie dogs under “Special Local Needs” supplemental labels for the States of
Kansas, Nebraska, Wyoming, Colorado, Texas and Oklahoma.
30. The use of “Rozol,” EPA Reg. No. 7173-244, to control black-tailed prairie dogs was restricted to the following counties in Colorado: Adams, Arapahoe, Baca, Bent, Boulder,
Broomfield, Cheyenne, Crowley, Denver, Douglas, El Paso, Elbert, Huerfano, Jefferson, Kiowa,
Kit Carson, Larimer, Las Animas, Lincoln, Logan, Morgan, Otero, Phillips, Prowers, Pueblo,
Sedgewick, Washington, Weld and Yuma.
31. The use of”Rozol,” EPA Reg. No. 7173-244, to control black-tailed prairie dogs was restricted to the following counties in Texas: Baylor, Brewster, Coke, Crane, Crockett,
Fisher, Jones, Nolan, Presidio, Reagan, Schleicher, Shackelford, Sutton, Terrell, Throckmorton,
Tom Green, Upton and Wilbarger.
32. During calendar years 2007 and 2008, “Rozol,” EPA Reg. No. 7173-244, was a
“pesticide” as defined at Section 2(u) of FIFRA, 7 U.S.C. § 136(u).
6 33. In January of 2008, the Toxics and Pesticides Branch, EPA Region 7 requested
that the Chemicals Management Branch, EPA Region 5, investigate potential violations of
FIFRA regarding “Rozol,” EPA Reg. No. 7173-244, at Respondent’s establishment.
34. On June 2, 2008, an inspector employed by the State of Wisconsin, Bureau of
Agrichemical Management, Compliance Section and authorized to conduct inspections under
FIFRA, conducted an inspection at Respondent’s place of business located at 3600 West Elm
Street in Milwaukee, Wisconsin.
35. The inspector issued a Federal SSURO pursuant to Section 13(a) of FIFRA,
7 U.S.C. § 136k(a), to Respondent regarding “Rozol,” EPA Reg. No. 7173-244, during the June
2, 2008 inspection.
36. After the Federal SSURO was issued, Respondent sent out letters, entitled “EPA
Literature Compliance-Rozol® Pocket Gopher Bait — Burrow Builder Formula / Prairie Dog
Bait,” to its distribution partners requesting that they each destroy any and all literature, flyers
and advertisements entitled “Black-tailed Prairie Dog Control — Research Bulletin,” dated
October 17, 2007; “Livestock Weight Gain and Prairie Dogs: ESA Frontiers in Ecology & the
Environment,” November 2006 Reprint; and “True Cost of Black-tailed Prairie Dog Control
(Whitepaper),” dated November 5, 2007.
37. On June 19, 2008, the inspector returned to Respondent’s place of business
located at 3600 West Elm Street, Milwaukee, Wisconsin, to collect documentary information from Respondent regarding “Rozol,” EPA Reg. No. 7173-244.
38. On June 19, 2008, the inspector collected a written statement and documentary information regarding “Rozol,” EPA Reg. No. 7173-244, from Respondent.
7
2007
Colby,
advertisements
product.
EPA
EPA
B,
advertisement
on
included advertisement
included
C
behalf
Reg.
(See and
Reg.
Kansas,
44.
43.
42.
41.
40.
39.
the
D.
invoices
Attachment
of
No.
No.
Advertisements
Respondent.
transcripts
to
Respondent
7
of
All
7
All
The
The
regarding
The
on
Radio
173-244,
173-244,
be
its
showing
120 four
four
transcripts
documentary
documentary
broadcast
product,
Advertisements
E).
occasions
versions
versions
of
“Rozol,”
failed
failed
the
contracted
the
“Rozol,”
without
regarding
radio
of
purchase
to
to
of
of
from
the
information
information
include
Golden
include
EPA
the
the
advertisements
radio
KXXX.-AM
with
re.garding
Identifying
on
radio
EPA
radio
Reg.
“Rozol,”
of
or
Plains any the
advertisements
Golden
radio
Reg.
about
advertisements
advertisements
No.
collected
collected
words
statements
8
Broadcast
broadcast “Rozol,
No.
AG
7173-244,
EPA
October
the
Plains
to
“restricted
Network
7
be
Restricted
173-244.
by
Reg.
by
“EPA
broadcast
AG
of
included
the
the
time
8,
to
to
the
No.
on
2007
Network
inspector
inspector
be
be
Reg.
the
use
terms
by
7
broadcast
broadcast
173-244.
Use
radio
to
Respondent
by
four
pesticide.”
No.
on
of
each
Classification
to
on
on
different
7173-244
restriction
or
station,
broadcast
June
June
regarding of
about regarding
See
the
for
Attachments
19,
19,
KXXX-AM
versions
December
radio
the
for
2008,
2008
radio
“Rozol,”
“Rozol,”
the
stations
also
of
in
21,
the A,
or
KRKU-FM,
FM,
regarding
behalf
statement
2008
advertisement
2,
Garden
advertisements
behalf
to
statement
advertisement
about
2008
on
in
to
or
of
Imperial,
of
48.
47.
46.
45.
City,
on (See
September
about
Respondent
Respondent
“Rozol,”
of
of
or
and
the
Attachment
the
Kansas,
about
(See
Respondent
December
On (See
Respondent
regarding
On
KJBL-FM
terms
Nebraska;
terms
229
EPA
Attachments
26,
Attachments
120
March
without
on
without
of
of
separate
2007
separate
Reg.
229
restrictions
F).
restrictions
21,
“Rozol,”
all
contracted
2,
contracted
and
to
occasions
2007,
2008,
No.
the
in
the
on
occasions
KSTH-FM,
McCook, A
occasions
A
inclusion
7
inclusion
or
through
EPA
Western
through
173-244,
KXXX-AM
KBUF
for
for
about
with
with
High
from
KBUF
“Rozol,”
Reg.
“Rozol,”
(See
Nebraska;
broadcast
(See
High
D)
of
Western
December
D)
of
Kansas
in
Plains
on
on
No.
the
the
Holyoke,
regarding
broadcast
Attachment
regarding
Broadcast
9
Attachment
the
or
Plains
EPA
spoken
7
spoken
EPA
about
173-244,
radio Radio
Broadcast
Kansas
one
KFNF-FM,
31,
Reg.
Radio
Reg.
Nebraska,
“Rozol,”
one
January
“Rozol,”
of
words
stations,
words
2007
F),
the
Broadcast
E),
No.
No.
on
of
to
from
four
from
(See
the
the
“restricted
“restricted
broadcast
7173-244.
7
15,
in
KICX-FM, EPA
173-244.
EPA
on
radio
four
on
Oberlin, versions
Attachment
2008
on
1,521
to
or
Reg.
Reg.
versions
or
broadcast
station,
about
radio
to
about
use
use
occasions
No.
No.
Nebraska;
on
of
KBRL-AM,
pesticide”
pesticide”
January
the
advertisements
or
G).
7
KBUF
October
of
7
173-244,
173-244,
about
radio
radio
the
from
radio
in
KADL
15,
March
or
8,
or
on
on
on
2007
a a KJCX-FM Broadcast
49. On 322 separate occasions (See Attachment G), from on or about September 26,
2007 to on or about December 31, 2007, KJCX-FM, in McCook, Nebraska, broadcast one of the four versions of the radio advertisement regarding “Rozol,” EPA Reg. No. 7173-244, on behalf of Respondent without the inclusion of the spoken words “restricted use pesticide” or a statement of the terms of restrictions for “Rozol,” EPA Reg. No. 7173-244.
KBRL-AMBroadcast
50. On 322 separate occasions (See Attachment G), from on or about September 26,
2007 to on or about December 31, 2007, KBRL-AM,in McCook, Nebraska, broadcast one of the four versions of the radio advertisement regarding “Rozol,” EPA Reg. No. 7173-244, on behalf of Respondent without the inclusion of the spoken words “restricted use pesticide” or a statement of the terms of restrictions for “Rozol,” EPA Reg. No. 7173-244.
KRKU-FM Broadcast
51. On 60 separate occasions (See Attachment G), from on or about September 26,
2007 to on or about December 31, 2007, KRKU-FM, in McCook, Nebraska, broadcast one of the four versions of the radio advertisement regarding “Rozol,” EPA Reg. No. 7173-244, on behalf of Respondent without the inclusion of the spoken words “restricted use pesticide” or a statement of the terms of restrictions for “Rozol,” EPA Reg. No. 7173-244.
KJBL-FM Broadcast
52. On 296 separate occasions (See Attachment G), from on or about September 26,
2007 to on or about December 31, 2007, KJBL-FM, in McCook, Nebraska. broadcast one of the four versions of the radio advertisement regarding “Rozol,” EPA Reg. No. 7173-244, on behalf
10
of
of 2007
four
the
Respondent to
versions
of
of
four
2007
of
of
the
Respondent
on
the
Respondent
the
Respondent
terms
versions
versions
to
or
to
terms
terms
terms
55.
54.
53.
on
about
on
of
of
or
or
the
of
without
restrictions
of
of
of
about
of
about
December
without
restrictions On
On
without
On
radio
restrictions
without
restrictions
the
the
322
60
139
radio
December
radio
December
the
advertisement
separate
separate
the
separate
the
the
for
inclusion
31,
advertisement
advertisement
for
inclusion
for
inclusion
for
inclusion
“Rozol,”
2007,
“Rozol,”
occasions “Rozol,”
“Rozol,”
31,
31,
occasions
occasions
of
2007,
2007,
KADL-FM,
regarding
of
the
of
EPA
of
KSTH-FM
KADL-FM
KFNF-FM
the
the
EPA
the
EPA
regarding EPA
spoken
regarding
KSTH-FM,
(See
KFNF-FM,
(See
(See
Reg.
spoken
spoken
spoken
Reg.
Reg.
Reg.
Attachment
“Rozol,”
Attachment
11
Attachment
in
No.
words
Broadcast
Broadcast
Broadcast
Imperial,
No.
“Rozol,”
No.
words
No.
“Rozol,”
words
words
7
in
in
173-244.
7173-244.
“restricted
7173-244.
7173-244.
Holyoke,
EPA
Oberlin,
“restricted
“restricted
“restricted
G),
G),
G),
Nebraska,
EPA
EPA
Reg.
from
from
from
Nebraska,
Nebraska,
Reg.
Reg.
No.
use
on
use
on
use
use
on
pesticide”
7
No. broadcast
or
No.
or 173-244,
or
pesticide”
pesticide”
pesticide”
about
about
about
7
7
broadcast
broadcast
173-244,
173-244,
October
or
one
September
September
on
or
a
or
or
behalf
of
statement
one
on
a
one
on
a
a
statement
the
statement
statement
15,
behalf
behalf
of
of
of
four
26,
2007
26,
the
the of KGNC-AM and KXGL-FM
56. Respondent contracted with KGNC-AMand KXGL-FMto broadcast these radio
advertisements regarding “Rozol,” EPA Reg. No. 7173-244, on the radio stations, KGNC-AM
and KXGL-FMin Amarillo, Texas, on 247 occasions from on or about November 12, 2007 to on
or about April 26, 2008 (See Attachment H).
KGNC-AMBroadcast
57. On 188 separate occasions (See Attachment H), from on or about November 12,
2007 to on or about April 26, 2008, KGNC-AM,in Amarillo, Texas, broadcast one of the four
versions of the radio advertisement regarding “Rozol,” EPA Reg. No. 7173-244, on behalf of
Respondent without the inclusion of the spoken words “restricted use pesticide” or a statement of
the terms of restrictions for “Rozol,” EPA Reg. No. 7173-244.
KXGL-FMBroadcast
58. On 59 separate occasions (See Attachment H), from on or about November 27,
2007 to on or about April 26, 2008, KXGL-FM,in Amarillo, broadcast one of the four versions
of the radio advertisement regarding “Rozol,” EPA Reg. No. 7173-244, on behalf of Respondent
without the inclusion of the spoken words “restricted use pesticide” or a statement of the terms of
restrictions for “Rozol,” EPA Reg. No. 7173-244.
Print Advertisements regarding “Rozol,“EPA Reg. No. 7173-244
59. The documentary information collected by the inspector on June 19, 2008 included invoices showing the purchase of print advertising by Respondent for the advertisement of”Rozol,” EPA Reg. No. 7173-244.
12 Cattle Guard Publication
60. Respondent contracted with Colorado Cattlemen’s Association to print an
advertisement regarding “Rozol,” EPA Reg. No. 7173-244, in its publication of Cattle Guard in
October 2007.
61. The October 2007 issue of Cattle Guard included an advertisement regarding
“Rozol,” EPA Reg. No. 7173-244.
62. The print advertisement in the October 2007 issue of Cattle Guard regarding
“Rozol,” EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
63. The print advertisement in the October 2007 issue of Cattle Guard regarding
“Rozol,” EPA Reg. No. 7173-244, failed to include any statements of the terms of restrictions of
“Rozol,” EPA Reg. No. 7173-244.
Kansas Stockman Publication
64. Respondent contracted with Kansas Livestock Association to print advertisements
regarding “Rozol,” EPA Reg. No. 7173-244, in its monthly publication of Kansas Stockman
from October 2007 through February 2008.
65. The October 2007 issue of Kansas Stockman included an advertisement regarding
“Rozol,” EPA Reg. No. 7173-244.
66. The print advertisement in the October 2007 issue of Kansas Stockman regarding
“Rozol,” EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
67. The print advertisement in the October 2007 issue of Kansas Stockman regarding
“Rozol,” EPA Reg. No. 7173-244, failed to include any statements of the terms of restrictions of
“Rozol,” EPA Reg. No. 7173-244.
13
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Registration
7173-244,
part
statements Wyoming
and
“Rozol,”
the
Section
19, of
that
accepted
accepted
accepted
label
the
Registration
2008
was
for
Livestock
statement
EPA
language
Division,
of
3
the
of
the
by
by
by Reg. 141. The Direct Mail Packages included cover letters, dated October 31, 2007, that were entitled “SUBJECT - ROZOL ® POCKET GOPHER BAIT-”
142. The cover letters, dated October 31, 2007, stated “Rozol,” EPA Reg. No. 7173-
244, was intended both “For Black — Tailed Prairie Dog (BTPD) Control” and “For Control of
Pocket Gophers.”
143. The Direct Mail Packages also included sales literature regarding “Rozol,” EPA
Reg. No. 7173-244, entitled “Black-tailed Prairie Dog Control - Research Bulletin.”
144. The date on the sales literature entitled “Black-tailed Prairie Dog Control -
Research Bulletin, “regarding “Rozol,” EPA Reg. No. 7173-244 was October 17, 2007.
145. Respondent sent the Direct Mail Packages to its distribution partners and/or customers to advertise “Rozol,” EPA Reg. No. 7173-244.
Claims in Cover Letters, dated October 31, 2007
146. During calendar years 2007 and 2008, the cover letters, dated October 31, 2007, made the following claim regarding “Rozol,” EPA Reg. No. 7173-244: “Provides the most control available in a single application.” (Emphasis in original.)
147. This claim is substantially different than any claim made for “Rozol,” EPA Reg.
No. 7173-244, as part of its March 2, 2005 “accepted label.”
148. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
149. During calendar years 2007 and 2008, the cover letters, dated October 31, 2007, made the following claim regarding “Rozol,” EPA Reg. No. 7173-244: “Poses low primary poisoning potential to birds and other non-targets.” (Emphasis in original.)
23 150. This claim is substantially different than any claim made for “Rozol,” EPA Reg.
No. 7173-244, as part of its March 2, 2005 “accepted label.”
151. PARAGRAPH TNTHE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
152. During calendar years 2007 and 2008, the cover letters, dated October 31, 2007,
made the following claim regarding “Rozol,” EPA Reg. No. 7173-244: “Both restricted-use and
general-use Rozol products are formulated using proven anticoagulant chiorophacinone at 50
PPM (parts per million) - unlike other half-strength, diphacinone-based baits containing as low
as 25PPM.”
153. This claim is substantially different than any claim made for “Rozol,” EPA Reg.
No. 7173-244, as part of its March 2, 2005 “accepted label.”
154. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
Claims in “Black — Tailed Prairie Dog Control — Research Bulletin”
155. During calendar years 2007 and 2008, the sales literature entitled “Black-tailed
Prairie Dog Control - Research Bulletin” made the following claim regarding “Rozol,” EPA
Reg. No. 7173-244: “Rozol consistently controlled Prairie Dog populations using a single application.”
156. This claim is substantially different than any claim made for “Rozol,” EPA Reg.
No. 7173-244, as part of its March 2, 2005 “accepted label.”
157. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
24
No.
COMPLAINT.
insignificant.”
Reg. Prairie
No.
COMPLAINT.
Reg. Prairie
No.
COMPLAINT.
Prairie
Reg.
(Emphasis
7173-244,
7
7173-244,
No.
No.
No.
173-244,
166.
165.
Dog 164.
163.
162.
Dog 161.
160.
159.
158.
Dog
7
7
7173-244:
173-244:
173-244:
in
Control
Control
Control
original.)
PARAGRAPH
(Emphasis
This
as
During
PARAGRAPH
This
as
During
PARAGRAPH
This
as
During
part
part
part
claim
claim
“Conclusion:
claim
“Secondary “Conclusion: - -
-
of
of
Research
calendar
of
Research
calendar
Research
calendar
its
its
its
in
is
is
is
March
March
substantially
original.) March
substantially
substantially
IN
IN
iN
years
years
years
Bulletin”
Bulletin”
Hazard
Bulletin”
THE
THE
Above-ground
THE
Rozol
2,
2,
2,
2005
2007
2005
2007
2005
2007
ORIGINAL
ORIGINAL
ORIGINAL
/
delivers
different
different
Nearly
different
made
made
made
“accepted
and
“accepted
and
“accepted
and
25
2008,
2008,
2008,
the
the
the
exposure
all
proven
than
than
than
COMPLAINT
following
COMPLAINT
following
COMPLAINT
Prairie
following
label.”
the
label.”
the
label.”
the
any
any
any
sales single
sales
sales
risk
Dogs
claim
claim
claim
claim
claim
literature
claim
literature
to
literature
application
expired
non-targets
made
made
made
REMOVED
REMOVED
REMOVED
regarding
regarding
regarding
for
for
entitled
for
entitled
entitled
underground.”
“Rozol,”
effectiveness.”
“Rozol,”
“Rozol,”
from
“Rozol,”
“Rozol,”
“Rozol,”
IN
IN
IN
“Black-tailed
“Black-tailed
“Black-tailed
AMENDED
Rozol
AMENDED
AMENDED
EPA
EPA
EPA
EPA
EPA
EPA
is
Reg.
Reg. Reg.
No.
Prairie
costly
anticoagulants
Reg.
No.
COMPLAINT.
measured Prairie
Reg.
No.
COMPLAINT.
Prairie
by
Reg.
the
7173-244,
7173-244,
7173-244,
No.
No.
No.
re-treatment.”
‘plugged
174.
173.
Dog
172.
171.
170.
Dog
169.
168.
Dog
167.
7173-244:
7173-244:
7
by
173-244:
Control
Control
Control
the
This
have
as
During
PARAGRAPH
This
as
During
PARAGRAPH
This
as
During
burrow’
‘visual
part
part
part
claim
not claim
“Traditional
claim
“Over “Over - -
-
of
of
Research
calendar
of
Research
calendar
Research
calendar
proven
count’
its
its
its census
is
is
is
all
all
March
March
substantially
March
substantially
substantially
sites,
IN
sites,
IN
to
census
years
years
years
Bulletin”
method.”
Bulletin”
Bulletin”
control
THE
effectively
THE
2,
2,
2,
94%
95%
2005
2007
2005
2007
2005
2007
method.”
ORIGINAL
ORIGINAL
products
average
different
average
different
different
made
made
made
“accepted
and
“accepted
and
“accepted
and
prevent
26
2008,
2008,
2008,
the
the
the
population
population
such
than
than
than
following
COMPLAINT
following
COMPLAINT
following
label.”
population
the
label.”
the
label.”
the
as
any
any
any
sales
sales
sales
zinc
claim
claim
claim
reduction
reduction
claim
claim
phosphide
literature
claim
literature
literature
recovery,
made
made
made
REMOVED
REMOVED
regarding
regarding
regarding
was
was
for
for
entitled
for
entitled
entitled
or
leading
“Rozol,” achieved
achieved
“Rozol,”
“Rozol,”
Diphacinone-based
“Rozol,”
“Rozol,”
“Rozol,”
IN
IN
“Black-tailed
“Black-tailed
“Black-tailed
to
AMENI)ED
AMENDED
EPA
when
the EPA
as
EPA
measured
EPA
EPA
EPA
need
Reg.
Reg.
Reg. to 175. PARAGRAPH TNTHE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
176. During calendar years 2007 and 2008, the sales literature entitled “Black-tailed
Prairie Dog Control - Research Bulletin” made the following claim regarding “Rozol,” EPA
Reg. No. 7173-244: “Kaput-D Prairie Dog Bait (25 PPM) achieved only 53% to 56% control.”
177. This claim is substantially different than any claim made for “Rozol,” EPA Reg.
No. 7173-244, as part of its March 2, 2005 “accepted label.”
178. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
179. During calendar years 2007 and 2008, the sales literature entitled “Black-tailed
Prairie Dog Control - Research Bulletin” made the following claim regarding “Rozol,” EPA
Reg. No. 7173-244: “Kaput-D Pocket Gopher Bait* (50 PPM) 2X the rate of active ingredient,
achieved oniy 56% to 57% control. *Not labeled for Black-Tailed Prairie Dog.” (Footnote found
in original text).
180. This claim is substantially different than any claim made for “Rozol,” EPA Reg.
No. 7173-244, as part of its March 2, 2005 “accepted label.”
181. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
182. During calendar years 2007 and 2008, the sales literature entitled “Black-tailed
Prairie Dog Control - Research Bulletin” made the following claim regarding “Rozol,” EPA
Reg. No. 7173-244: “Comparative Toxicity Profile Overall Risk to Birds and Mammals / Rozol is ranked over 50% lower than zinc phosphide in the EPA’s overall risk index and 1/3 lower than
Diphacinone (Kaput-D).”
27
Prairie
Reg.
No.
COMPLAINT.
Prairie
Reg.
No.
COMPLAINT.
Prairie
Reg.
dogs
No.
COMPLAINT.
7173-244,
7173-244,
7173-244,
No.
No.
No.
as
191.
Dog
190.
189.
188.
Dog
187.
186.
Dog
185.
184.
Kaput-D’ 183.
7173-244:
7
7173-244:
173-244:
Control
Control
Control
During
PARAGRAPH
This
as
During
PARAGRAPH
This
as
During
PARAGRAPH
This
as
part
s
part
part
(diphacinone).”
claim
“Conclusion:
claim
“Chlorophacinone
claim “Rozol’s - -
-
of
Research
calendar
of
Research
calendar
of
Research
calendar
its
its
its
is
is
is
March
March
substantially March
substantially
substantially
active
IN
TN
TN
years
years
years
Bulletin”
Bulletin”
Bulletin”
THE
Rozol-
THE
THE
2,
2,
2,
ingredient
2007
2005
2007
2005
2007
2005
is
ORIGINAL
ORIGINAL
ORIGINAL
the
over
different
different
made different
made
made
and
“accepted
and
“accepted
and
“accepted
lowest
100X
28
2008,
2008,
(chlorophacinone)
2008,
the
the
the
than
than
than
following
COMPLAINT
risk
following
COMPLAINT
following
COMPLAINT
more
the
label.”
the
label.”
the
label.”
any
any
any
profile
sales
sales
sales
effective
claim
claim
claim
claim
claim
literature
claim
literature
literature
among
made
made
is
made
REMOVED
REMOVED
REMOVED
on
regarding
regarding
ten
regarding
mice
Black
for
entitled
times
for
entitled
for
entitled
“Rozol,”
“Rozol,”
“Rozol,”
than
Tailed
(lOX)
“Rozol,”
“Rozol,”
“Rozol,”
IN
IN
TN
“Black-tailed
“Black-tailed
“Black-tailed
dipachinone.”
AMENDED
AMENDED
AMENDED
Prairie
less
EPA
EPA
EPA
EPA
EPA
EPA
toxic
Reg.
Reg.
Reg.
Dog to
control
“Rozol,”
that
distribution
requirements
No.
COMPLAINT.
Prairie
Reg.
differences.”
No.
COMPLAINT.
targets?”
bait
began
7
7173-244,
alternatives...
No.
173-244,
of
199.
198.
197.
196.
195.
194.
Dog
193.
192.
EPA
7173-244:
(Emphasis
black-tailed
broadcasting
or
Control
of
Reg.
Respondent’s
sale
The
The
PARAGRAPH
This
Radio
as
During
PARAGRAPH
This
as
40
part
part
of
claims
literature
C.F.R.
Why
No.
claim
claim
“Chart in
-
Advertisements
“Rozol,”
prairie
of
of
Research
calendar
original.)
7
on
risk
its
its
173-244:
is
made
is
§
or
entitled
March
March
substantially
168.22.
radio
substantially
in
potential
dogs.”
about
IN
IN
EPA
the
years
in
Bulletin”
THE
THE
advertisements
“Rozol
the
2,
Direct
2,
“Compare
September
Reg.
regardin
2005
2007
2005
harm
Direct
ORIGINAL
ORIGINAL
different
No.
different
Mail made
-
“accepted
and
“accepted
proven
to
7173-244.
the
employees,
29
26,
Packages
2008,
the
“Rozol,
regarding
products
than
Packages
2007,
than
single
COMPLAINT
following
COMPLAINT
label.”
the
label.”
any
“EPA
any
made
are
sales
application
livestock,
for
claim
claim
“Rozol,”
were
advertisements,
claim
Re,.
literature
yourself-
the
made
made
made
following
REMOVED
REMOVED
No.
regarding
birds,
effectiveness
EPA
for
as
7173-244
for
entitled
there
a
pets
Reg.
“Rozol,”
“Rozol,”
part
subject
claim
“Rozol,”
are
or
IN
IN
No.
“Black-tailed
of
other
many
AMENDED
regarding
for
AMENDED
the
to
EPA
7173-244,
EPA
the
the
non-
EPA
Reg. Reg. 200. This claim is substantially different than any claim made for “Rozol,” EPA Reg.
No. 7173-244, as part of its March 2, 2005 “accepted label.”
201. PARAGRAPH TNTHE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
202. Respondent’s radio advertisements regarding “Rozol,” EPA Reg. No. 7173-244,
that began broadcasting on or about September 26, 2007, made the following claim regarding
“Rozol,” EPA Reg. No. 7173-244: “Proven in university studies on over 10,000 burrows to get
94% control with a single treatment.”
203. This claim is substantially different than any claim made for “Rozol,” EPA Reg.
No. 7173-244, as part of its March 2, 2005 “accepted label.”
204. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
205. The radio advertisements that began broadcasting on or about September 26, 2007 are advertisements, subject to the requirements of 40 C.F.R. § 168.22.
206. The claims made in the radio advertisements that began broadcasting on or about
September 26, 2007 were made as a part of the distribution or sale of “Rozol,” EPA Reg. No.
7173-244.
WebsiteAdvertisements re.garding “Rozol,“EPA Reg. No. 7173-244
207. On or about January 22, 2008, Respondent’s website at www.liphatech.com also made claims that were substantially different than claims made for “Rozol,” EPA Reg. No. 7173-
244, as part of its March 2, 2005, “accepted label.”
208. On or about January 22, 2008, Respondent’s website at www.liphatech.com also made claims that were false and misleading.
30
No.
69341. No.
No.
69341.
Dog
Ecology
Bulletin,
Prairie
literature,
entitled
pursuant
Reg.
part
requirements
7
7
7173-244,
of
Control
No.
173-244,
173-244,
215.
214.
213.
the
212.
211.
210.
Dog 209.
“EPA &
“
to
7173-244.
flyers
dated
distribution
the
Section
Bait,
(lVhitepaper),
of
to
On
Literature
On
to
to
On
Environment,
After
During
The
Respondent’s
and
October
40
Agriliance
Agriliance
United
“to
or
or
or
claims
C.F.R.
13(a)
advertisements
the
about
about
about
Distribution/Sale
its
the
or
June
Suppliers
distribution
17,
Compliance-Rozol®
of
sale
June
made
§
October
October
October
“dated
Service
Service
FIFRA,
“November
2007;
168.22.
website
2,
of
2,
2008,
on
“Rozol,”
2008
Inc.,
November
“Livestock
19,
8,
Respondent’s
1,
entitled
Center,
Center,
7
partners
on
2007,
2007,
Federal
U.S.C.
of
2007,
inspection,
located
January
2006
“Rozol,
EPA
located
located
Respondent
Respondent
“Black-tailed
Respondent
requesting
§
5,
SSURO
31 Weight
Reprint;
at
Reg.
136k(a),
2007.
22,
“EPA
website
30473
the
at
at
2008
No.
Gopher
Gain
East
1250
inspector
was
and
Re.g.
that to
260 th
distributed
distributed
7
distributed
on
Prairie
is
173-244.
Respondent
Highway
issued,
and
Rundell
“True
an
they
January
No.
Bait
Street,
advertisement,
Prairie
issued
each
7173-244 Dog
—
Cost
Respondent
or
or
Road, Burrow
or
23
Eldora,
22,
sold
sold
destroy
Control
a
regarding
Dogs:
sold
of
and
Federal
2008,
Black-tailed
Gering,
“Rozol,”
“Rozol,”
61,
“Rozol,”
Builder
Iowa
ESA
subject any
—
sent
were
Grant,
SSURO,
Research
“Rozol,”
50627.
Nebraska
and
Frontiers
out
Formula
EPA
EPA
made
EPA
to
Nebraska
Prairie
all
letters,
the
Reg.
Reg.
as
EPA
Reg.
in
a /
Reg.
79044.
Reg.
Bridgeport,
“Rozol,”
Reg.
50595.
220t Reg.
220 th
Reg.
No.
Reg.
80239.
7173-244,
No.
No.
No.
No.
No.
No.
Street,
Street,
223.
222.
221.
220.
219.
218.
217.
216.
7
EPA
7173-244,
7
7
7173-244,
7
173-244,
173-244,
173-244,
173-244,
Nebraska
Webster
Webster
Reg.
On
On
On
On
On
On
On
On
to
Jim
or
or
or
or
or
or
or
or
No.
to
to
to
(Shipper’s
(Shipper’s
to
about
about
about
about
about
about
about
City,
about
City,
69336.
Knuth,
Helena
Wilbur
Van
Estes,
7173-244,
December
Iowa
December
December Iowa
December
December
Diest
December
December
October
Inc.,
located
Chemical,
Ellis,
No./Carrier’s
No./Carrier’s
50595.
50595.
Supply,
located
to
located
29,
Helena at
19,
7,
12,
6,
4,
4,
3,
104
2007,
2007,
2007,
2007,
2007,
located
2007,
2007,
located
2007,
at
at
Applewood
No.
11333
Chemical,
No.
2765
Respondent
32
Respondent
Respondent
Respondent
Respondent
Respondent
Respondent
Respondent
at
012563)
at
012559)
North
East
FM
1434
located
2397, Court, 55 th
220 th
Highway
to
to
distributed
distributed
distributed
distributed
distributed
distributed
distributed
distributed
Van
Van Avenue,
Frionia,
Street, Council
at
Diest
Diest
425
385/87,
Unit
or
Webster
Railroad
or
or
or
Texas or
or
or
Supply,
or
Supply,
Bluffs,
sold
sold
sold
sold
sold
sold
sold
sold
C,
Hartley,
79035.
“Rozol,”
Denver,
80
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
City,
Iowa
Avenue,
located
located
bags
Texas
Iowa
51503.
of
Colorado
EPA
EPA
EPA
at EPA
at
EPA
EPA
EPA
1434
1434 Reg.
68822. Reg.
Texas
Reg.
Reg.
79044. No.
No.
No.
No.
No.
Kansas
No.
7173-244,
7173-244,
7
7
No.
7
No.
7173-244,
No.
173-244,
173-244,
173-244,
79045.
232.
231.
230.
229.
228.
227.
226.
225.
224.
67846.
7173-244,
7
7173-244,
173-244,
On
On
On
to On
to On
to On
to
On
to
On
On
to
Estes,
Pro-Chem,
Estes,
Helena
Pro-Chem,
or UAP
or
or
or
or
or
or
or
or
to
to
to
about
about
about
about
about
about
about
about
about
Arrow
Wilbur-Ellis,
Helena
Distribution
located
located
Chemical,
February
February
February
February
February
January
January
January
January
located
located
Seed,
Chemical,
at
at
Highway
4302
located
25,
24,
23,
located
located North,
18,
15,
at
14,
8,
14,
5,
at
900
2008,
2008,
900
2008,
2008,
2008,
Locust
2008,
2008,
2008,
2008,
located
at
located
Ross
Ross
at
at
183,
Respondent
Respondent
Respondent
126
Respondent
Respondent
Respondent
North
Respondent
33
1
Respondent
Respondent
Street,
Mile
at
Route
Street,
Street,
North
at
North
Highway
2025
Southwest
Lubbock,
1,
Amarillo,
Amarillo,
10 th
Highway
Box
distributed
distributed
distributed
distributed
distributed
distributed
distributed
distributed
distributed
South
Street,
385/87,
431,
Texas
U.S.
Old
Texas
Texas
385/87,
Clinton,
Broken
or
or
or
or
Highway or
or
Highway
or
or
or
Hartley,
79404.
sold
sold
sold
sold
sold
sold
sold
79404.
sold
sold
79404.
Hartley,
Bow,
Oklahoma
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
60,
Texas
83,
Nebraska
Hereford,
Garden
Texas
79044.
EPA
EPA
EPA
EPA
EPA
EPA
EPA
EPA
EPA
73601.
City,
Reg.
Reg.
Reg.
Reg.
Reg. Reg.
No.
No.
No.
69001.
No.
No.
68822. No.
69001.
No.
No.
No.
No.
7173-244,
7173-244,
7173-244,
7
7
7173-244,
7173-244,
7173-244,
7173-244,
7173-244,
173-244,
173-244,
242.
241.
240.
239.
238.
237.
236.
235.
234.
233.
On
to
On
to
On
to
to
On
On
to
On
to
to
On
On
to
to On
On
to
Farmers
Estes,
Van
Helena
Arrow
Van
Pro-Chem,
Van
Heritage
Van
or
or
or
or
or
or
or
or
or
or
about
about
about
about
about
about
about
about
about
about
Diest
Diest
Diest
Diest.
located
Seed
Chemical,
Coop
March
March
March
Seed,
March
March
March
March
March
March
March
Supply,
Supply,
Supply,
located
located
Company,
at
Grain,
located
4302
19,
18,
17,
14,
13,
13, 7,
6,
10,
6,
located
located
located
located
at
at
2008,
2008,
2008,
2008,
2008,
2008,
2008,
2008,
2008,
2008,
located
900 71703
Locust
at
located
324
Respondent
Respondent
Respondent
at
Ross
Respondent
Respondent
at
Respondent
Respondent
at
Respondent
at
Respondent
Respondent
601
US
71703
at
34
71703
Street,
1434
Main
at
102
Street,
Highway
West
126
220th
U.S.
West
U.S.
Street,
Lubbock,
North
distributed
distributed
distributed
Amarillo, distributed
1 st
distributed
distributed
distributed
distributed
distributed
distributed
Street,
Highway
Highway
Avenue,
G
83,
Crawford, Street,
10 th
McCook,
Texas
Webster
Street,
Texas
or
or
or
or
or
or
or
Hoidrege, or
83, or
or
83,
Trenton,
sold
sold
sold
sold
sold
sold
79404. sold
sold
sold
sold
Nebraska
McCook,
McCook,
79404.
Nebraska
Broken
City,
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
Nebraska
Nebraska
Iowa
Bow,
69339.
Nebraska
Nebraska
69001.
EPA
EPA
EPA
EPA
EPA
EPA
EPA
EPA
EPA
EPA
50595.
Nebraska
69044.
68949.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg. Reg.
No.
7173-244,
No.
69001. No.
No.
No.
68822.
7173-244,
No.
No.
68822.
7
7173-244,
7
7173-244,
7173-244,
7173-244,
7173-244,
173-244,
173-244,
251.
250.
249.
248.
247.
246.
245.
244.
243.
to
to
Estes,
Arrow
On
to
On
to
On
to On
to
On
On
to
On
On
to
to On
Mark
Van
Helena
Richard
Helena
McCoy
Arrow
or
or
or
or
or
or
or
or
or
located
Seed
about
about
about
about
about
about
about
about
about
Diest
Newman,
Seed
Chemical,
Chemical,
Farms,
Company,
Robbins,
April
April
at April
April
April
April
March
March
March
Supply,
Highway
Company,
2
18,
18,
4, located
15,
located
15,
31,
2008, 24,
24,
located
2008,
located
located
located
2008,
2008,
located
2008,
2008,
2008,
2008,
2008,
183,
Respondent
at
at
located
Respondent
Respondent
Respondent
Respondent
Respondent
at
HC
6702
at
at
at
Route
at Respondent
Respondent
Respondent
20500
North
North
71703
35
126
72
at
Silverbell
Box
1,
North
126
Highway
County
Highway
distributed U.S.
Box
distributed
distributed
distributed
distributed
distributed
1,
North
distributed
distributed
distributed Crookston,
10 th
431,
Highway
Lane,
Road
385/87,
Street,
3
Clinton,
85/87,
or
or
Amarillo,
52,
or
or
or
Street,
or
sold
83,
or
or
or
sold
Broken
sold
sold Nebraska
sold
sold
Walsh,
Hartley,
Hartley,
sold
sold
sold
McCook,
Oklahoma
“Rozol,”
“Rozol,”
Broken
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
“Rozol,”
Texas
Bow,
Colorado
Texas
Texas
69212.
EPA
Bow,
Nebraska
EPA
79124.
73601.
Nebraska
EPA
EPA
EPA
EPA
EPA
EPA
EPA
79044.
79044.
Reg.
Nebraska
81092.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
No. No. 252. On or about May 1, 2008, Respondent distributed or sold “Rozol,” EPA Reg. No.
7173-244, to Bayne Seed & Supply, located at 3900 North Lamont Road, Hershey, Nebraska
69143.
253. On or about May 9, 2008, Respondent distributed or sold “Rozol,” EPA Reg. No.
7173-244, to Estes, located at 4302 Locust Street, Lubbock, Texas 79404.
254. On or about May 15, 2008, Respondent distributed or sold “Rozol,” EPA Reg.
No. 7173-244, to Helena Chemical, located at North Highway 385/87, Hartley, Texas 79044.
255. On or about May 30, 2008, Respondent distributed or sold “Rozol,” EPA Reg.
No. 7173-244, to Gross Seed, located at Highway Contract Route 66 Box 13, Johnstown,
Nebraska 69214.
256. On August 22, 2008, EPA amended the Federal SSURO, dated June 2, 2008
“Rozol,” EPA Reg. No. 7173-244.
257. The August 22, 2008, amended Federal SSURO prohibited the Respondent from
distributing any further advertisement literature “Rozol,” EPA Reg. No. 7173-244 without further approval from EPA.
Calendar Year 2009 to present
258. During calendar years 2009 and 2010, Respondent was the registrant of”Rozol,”
EPA Reg. No. 7173-244.
259. On or about May 13, 2009, Respondent registered “Rozol Prairie Dog Bait,” EPA
Reg. No. 7173-286.
260. Prior to the registration of”Rozol Prairie Dog Bait,” EPA Reg. No. 7173-286, on
May 13, 2009, Respondent had registered “Rozol,” EPA Reg. No. 7173-244, under the authority
36
7
“pesticide”
persons
Certified
Bait,” toxicity
use
7 Prairie tailed
§ No.
7
“Special
of
173-286,
173-286,
173-286,
136a(d).
Section
product
7173-286,
prairie
EPA
267.
266.
265. Dog
264.
263.
262.
261.
under
to
Applicator’s
Local
was
nontarget
was
supersedes
24(c)
as
Reg.
under
Bait,”
dogs
defined
the
During
During
a
“Rozol
During
to
classified
As
Needs”
Due
During
“pesticide”
No.
of
direct control
Section
under
a EPA
FIFRA,
result
to
organisms.
7
at
calendar
certification.
calendar
the
Prairie
173-286,
calendar
the
supplemental
calendar
Reg.
supervision
Section
“Rozol,”
as
black-tailed
Section
3(d)
of
fact
a
7
as
No.
its
restricted
Dog
U.S.C.
defined
that
years
of
years
years
can
classification
2(u)
years
7
FIFRA,
24(c)
EPA
Bait,”
173-286.
Respondent
only
of
2009
2009
§
of
labels.
2009
prairie
2009
at Certified
136v(c),
use
Reg.
“Special
FIFRA,
be
EPA
Section
7
and
and
and
product
sold U.S.C.
and
No.
dogs,
as
Reg.
37
2010,
2010,
2010,
registered
7
Applicators
to
2010,
to
a
Local
7173-244.
2(u)
U.S.C.
restricted
control
and
§
“Rozol
No.
under
“Rozol
“Rozol,”
136a(d),
Respondent
of
“Rozol
Needs”
be
7
FIFRA,
173-286,
§
Section
“Rozol
used
black
Prairie
136(u).
use
and
Prairie
because
Prairie
EPA
registrations
by product,
-
only
7
Prairie
was
3(d)
tailed
Dog
was
Certified
U.S.C.
Reg.
Dog
Dog
for
the
of
of
classified
Bait,”
prairie
Bait,”
No.
“Rozol
Dog
its
users
FIFRA,
registrant
§
Bait,”
to
Applicators
potential
136(u).
7
EPA
Bait,”
control
173-244,
covered
EPA
dogs
Prairie
EPA
as
7
Reg.
U.S.C.
a
of”Rozol
EPA
Reg.
under
restricted
secondary
black
Reg.
by
Dog
was
No.
or
No. Reg.
the No.
- a
information).
each
- the
search
inspections
the
Bait,”
Program,
No.
approved
required
Division
submitted
Sales
public.
Office
7
manager’s
173-286.
EPA
of
Ag/Animal
274.
273.
272.
271.
270.
269.
268.
by
www.liphatech.com.
accepted
Registration
by
of
by
under
Reg.
Respondent
EPA
Pesticides
Respondent.
Respondent’s
Respondent’s
On
Any
The
The
On
corresponding
No.
Sections
for
November
Health,”
a
or
“accepted
“accepted
changes
label
7
about
“Rozol
Division
173-286,
Program,
in
regarding
8
connection
which
May
in
website
website
and
Prairie
18,
label”
label”
contact
labeling
prior
must
9
13,
2009,
Registration
included
of
“Rozol
and
and
2009,
Dog
at
at
to
be
FIFRA,
information
with
www.liphatech.com
www.liphatech.com
an
that
use
submitted
any
any
Bait,”
inspector
the
Prairie
in its
a
differs
subsequent
subsequent
list
7
commerce.
Division
Office
registration
38
U.S.C.
EPA
of
(including
to
Dog
in
sales
employed
of
and
Reg.
substance
§
on
Bait,”
Pesticides
amendments
amendments
managers
accepted
136f
No.
“Rozol
May
included
advertised
phone,
EPA
by
7173-286.
and
from
13,
EPA
Prairie
Program,
by
throughout
Reg.
2009,
136g.
mobile
a
the
identify
are
Office
link
its
and
No.
labeling
Dog
a
conducted
for
pesticide
part
authorized
entitled
and
Registration
of
7173-286,
“Rozol
the
Bait,”
the
of
Pesticides
accepted
label
the
country
products
“Contact
an
EPA
Prairie
statement
to
language
internet
that
conduct
Reg.
with
by
Dog
was
to Us Claims in the Product Information Sheet regarding “Rozol Prairie Dog Bait, “ EPA Reg. No. 7173-286, on November 18, 2009
275. On November 18, 2009, Respondent made the following claims in the Product
Information sheet regarding “Rozol Prairie Dog Bait,” EPA Reg. No. 7173-286, on
www.liphatech.com: “Proven Single Application Effectiveness — When properly applied in all
active burrows of a colony, control typically exceeds 85%, and can be as high as 100%.”
(Emphasis in original).
276. This claim is substantially different than any claim made for “Rozol Prairie Dog
Bait,” EPA Reg. No. 7173-286, as part of its May 13, 2009 “accepted label.”
277. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED IN AMENDED
COMPLAINT.
278. On November 18, 2009, Respondent made the following claims in the Product
Information sheet regarding “Rozol Prairie Dog Bait,” EPA Reg. No. 7173-286, on
www.liphatech.com: “Low cost per acre - Savings in time, labor and fuel exceed comparative
total costs of other methods such as zinc phosphide, diphacinone, phos-toxin, and foam or
propane-based systems.” (Emphasis in original).
279. This claim is substantially different than any claim made for “Rozol Prairie Dog
Bait,” EPA Reg. No. 7173-286, as part of its May 13, 2009 “accepted label.”
280. PARAGRAPH IN THE ORIGINAL COMPLAINT REMOVED TNAMENDED
COMPLAINT.
281. On November 18, 2009, Respondent made the following claims in the Product
Information sheet regarding “Rozol Prairie Dog Bait,” EPA Reg. No. 7173-286, on
39
Bait,”
wildlife.”
Diphacinone,
EPA’s
www.liphatech.com:
Information
COMPLAINT.
Bait,”
target
altogether.”(Emphasis
www.liphatech.com:
Information
COMPLAINT.
Bait,” wet.
www.liphatech.com:
It
EPA
rodent
EPA
EPA
overall
288.
287.
286.
285.
284.
283.
282.
outlasts
(Emphasis
Reg.
Reg.
Reg.
sheet
sheet
is
And
risk
This
On PARAGRAPH
This
On
PARAGRAPH
This
not
Zinc
No.
No.
No.
regarding
November
regarding
Prairie
November
assessment,
in
claim
claim
claim
in
7173-286,
“Best
7173-286, Phosphide.”
“Provides
7173-286,
“Superior
the
in
original).
original).
burrow
is
dogs
is
is
Bait
substantially
“Rozol
substantially
“Rozol
substantially
18,
18,
IN
IN
Rozol
will
as
as
Acceptance as
control,
Weatherability
2009,
during
2009,
THE
(Emphasis
THE
part
part
part
eat
Prairie
Prairie
offers
of
it
of
ORIGINAL
Respondent
of
ORIGINAL
Respondent
application
in
different
regardless
its
different
different
its
its
Dog
Dog
the
lower
May
May
in
&
May
40
burrow,
original).
Favorable
Bait,” Bait,”
-
13,
than
13,
overall
13,
than
Rozol
than
made
COMPLAINT
made COMPLAINT -
-
2009
success
2009
2009
With
EPA
EPA
any
any
so
any
does
risk
the
the
there
“accepted
Toxicity
“accepted
claim
“accepted
Reg.
many
claim
Reg.
claim
following
is
following
than
not
reduced
is
No.
No.
made
made alternative
made
less
lose
REMOVED
Zinc
REMOVED
Profile
7
label.”
7
label.”
label.”
risk
173-286,
173-286, its
for
claims
for
claims
Phosphide
for
or
effectiveness
“Rozol to
control
“Rozol “Rozol
-
methods,
non-target
According
in
in
TN
on
IN
on
the
the
Prairie
is
AMENDED
Prairie
or
AMENDED
Prairie
Product
lost
Product
if
when
the
to
Dog
Dog
Dog the
entitled
COMPLAINT
Bait,”
original).
entitled
on
COMPLAINT.
Bait,”
original).
(times)
www.liphatech.com:
Information
COMPLAINT.
www.liphatech.com:
EPA
EPA
296.
295.
294.
293.
292.
291.
290.
less 289.
“Control
“Control
Reg.
Reg.
than
sheet
On
PARAGRAPH
This
On
PARAGRAPH
This
On
PARAGRAPH
No.
regarding
No.
for
Range
Range
November
November
regarding
November
claim
claim
ZP.
Claims
7173-286,
7173-286,
“Lower
Rodents”
“Outstanding
Rodents”
Rozol
is
is
“Rozol
substantially
substantially
in
“Rozol
18,
18,
Primary
18,
IN
IN
IN
brochure
as
less
as
2009,
2009,
THE
2009,
THE
THE
regarding
part
regarding
part
Prairie
toxic Prairie
on
of
ORIGINAL
Respondent
of
Single ORIGINAL
Respondent
ORIGINAL
Poisoning
Respondent
November
different
entitled
different
its
to
its
Dog
Dog
dogs
“Rozol
May
“Rozol
May
Application
41
Bait,”
Bait,”
than
“Control
13,
than 13,
Potential
than
18,
made
COMPLAINT
made
COMPLAINT
Prairie
made
COMPLAINT
Prairie
2009
2009
ZP
EPA
EPA
2009
any
any
the
the
or
the
Range
“accepted
Dog
Effectiveness”
“accepted
claim
Dog
claim
Reg.
Reg. Diphacinone.”
-
following
following
following
Rozol’s
Bait,”
Bait,”
No. No.
made
made
Rodents”
REMOVED
REMOVED
REMOVED
label.”
7173-286,
label.”
7173-286,
toxicity
EPA
EPA
claims
for
claims
for
claims
(Emphasis
“Rozol
“Rozol
(Emphasis
Reg.
Reg.
in
to
in
in
IN
IN
TN
on
its
No.
birds
its
No.
the
AMENDED
Prairie
AMENDED
Prairie
AMENDED
brochure
brochure
Product
7
7
in
in
173-286, is
173-286,
20X
Dog Dog
Bait,”
original).
wet
on
entitled
COMPLAINT.
Bait,”
preferred
in
on
entitled
COMPLAINT. Bait,”
provide
burrows
on
original).
www.liphatech.com:
www.liphatech.com: www.liphatech.com:
-
it
EPA
EPA
EPA
303.
302.
outlasts
301.
300.
299.
298.
297.
“Control
over
“Control
in
feed
Reg.
Reg. a
Reg.
colony).”
94%
This
source
On
PARAGRAPH
This
On PARAGRAPH
This
zinc
No.
No.
No.
Range
Range
November
November
control
claim
claim
phosphide
claim
7173-286,
7
7173-286,
for
173-286,
(Emphasis
“Superior
Rodents”
“Highly
Rodents”
“Proven
field
is
is
is
in
substantially
substantially
substantially
one
18,
18,
rodents
IN
IN
and
as
as
as
2009,
treatment
Palatable
2009,
THE
THE
Reliability
part
in
regarding
part
regarding
part
Weatherability
can
original).
and
of
ORIGINAL
of
be
Respondent
ORIGINAL
of
Respondent
different
its
different
different
its
its
used
provides (when
-
May
“Rozol
May
“Rozol
May Food-grade
-
42
under
In
13,
properly
than
13,
university
than
13,
than
made
COMPLAINT excellent
-
made
COMPLAINT
Prairie
Prairie
2009 Rozol
2009
diverse
2009
any
any
any
winter
the
the
“accepted
and
“accepted
claim
Dog
“accepted
claim
Dog
does
claim
trials
following
acceptance
weather
following
thoroughly
wheat
Bait,”
Bait,”
not
made
made
made
on
REMOVED
REMOVED
lose
label.”
label.”
over
label.”
conditions.”
EPA
grain
EPA
for
claims
for
claims
for
and
its
applied
“Rozol
11,400
“Rozol
“Rozol
Reg.
effectiveness
Reg.
(10%
control”
in
in
IN
IN
its
No.
its
No.
burrows
protein)
Prairie to
(Emphasis
AMENDED
Prairie
AMENDED
Prairie
brochure
brochure
all
7173-286,
(Emphasis
7
173-286,
active
Dog
when
Dog
Dog
to
is
a in
COMPLAINT.
Bait,”
(Emphasis
Livestock
on
entitled
COMPLAINT.
Bait,”
applications.”
on entitled
COMPLAINT.
www.liphatech.com:
www.liphatech.com:
EPA
EPA
310.
309.
308.
307.
306.
305.
304.
“Control “Control
-
in
Reg.
Reg.
Rozol’s
original,
PARAGRAPH
This
(Emphasis
On
PARAGRAPH
This
On
PARAGRAPH
No.
No.
Range
Range
November
November
claim
claim
primary
7
7173-286,
173-286,
footnote
‘Lower
Rodents”
“Easy-to-Use/Less
Rodents”
is
in
is
substantially
original).
substantially
toxicity
18,
IN
18,
IN
IN
deleted).
as
as
Primary
THE
2009,
2009,
THE
part
THE
regarding
part
regarding
to
of
ORIGINAL
ORIGINAL of
Respondent
birds
ORIGINAL
Respondent
different
its
different
its
Poisoning
May
Work
“Rozol
May
is “Rozol
43
much
13,
than
13, than
-
COMPLAINT
made
COMPLAINT
made
Prairie
COMPLAINT
No
Prairie
2009
Potential
less
2009
any
any
need
the
than
the
“accepted
claim
“accepted
Dog
claim
Dog
following
to
following
that
to
pre-treat
Bait,”
Bait,”
made
made
Non-Target
REMOVED
REMOVED
of
REMOVED
label.”
label.”
acute
EPA
EPA
for
claims
for
claims
and
“Rozol
“Rozol
toxicants.”
Reg.
Reg.
less
in
Birds
IN
in
TN
TN
its
No.
repeat
its
No.
AMENDED
Prairie
AMENDED
Prairie
AMENDED
brochure
brochure
and
7173-286,
7
173-286,
Dog Dog
in preferred
www.liphatech.com:
entitled
COMPLAiNT. No.
burrows provide
www.liphatech.com:
entitled
COMPLAINT. No.
www.liphatech.com:
entitled
original).
7
7
173-244,
173-244,
317.
316.
315.
314.
313.
312.
311.
“Control
over
“Control
in
“Control
feed
a
colony).”
94%
source
On
PARAGRAPH
This
as
On
PARAGRAPH
This
as
On
Range
part
Range
part
November
Range
control
November
November
claim
claim
“Highly
for
“Proven
“Outstanding
of
of
(Emphasis
Rodents”
field
its
Rodents”
Rodents”
its Claims
is
in
is
March
March
substantially
one
substantially
18,
Palatable
rodents
18,
regarding
IN
18,
Reliability
IN
treatment
2009, in
2009,
THE
2009,
in THE
regarding
2,
regarding
regarding
2,
brochure
original).
Single
2005
2005
and
ORIGINAL
Respondent
ORIGINAL
Respondent Respondent
-
“Rozol,”
on
different
Food-grade
different provides
-
(when
“accepted
“accepted
Application
November
In
“Rozol,”
“Rozol,”
“Rozol,”
entitled
44
university
properly
EPA
than
than
excellent
made
COMPLAINT
made
COMPLAINT
made
label.”
label.”
winter
EPA
“Control
EPA
EPA
any
18,
Reg.
any
Effectiveness”
the trials
the
the
and
Reg. 2009
Reg.
claim
Reg.
claim
wheat
acceptance
No.
following
following
following
thoroughly
on
Range
No.
No.
No.
7173-244,
made
made
over
REMOVED
REMOVED
grain
7
7
7173-244,
173-244,
173-244,
Rodents”
claims
11,400
for
claims
for
and
(Emphasis claims
(10%
applied
“Rozol,”
“Rozol,”
control”
in
burrows
protein)
in
on
in
IN
on
IN
on
its
its
its
to
AMENDED
AMENDED
in
brochure
brochure
all
brochure
EPA
(Emphasis
EPA
original).
to
is
active
a
Reg. Reg.
entitled
No.
COMPLAINT.
www.liphatech.com:
applications.”
entitled
No.
COMPLAINT.
original).
- www.liphatech.com:
entitled
COMPLAINT.
No.
it
outlasts
7173-244,
7173-244,
7173-244,
326.
325.
324.
323.
322.
321.
“Control
320.
319.
318.
“Control
“Control
zinc
(Emphasis
On
PARAGRAPH
This
as
On
PARAGRAPH
This
as
On
PARAGRAPH
This
as
phosphide
Range
part
Range
part
November
Range
part
November
November
claim
claim
claim
“Easy-to-Use/Less
“Superior
of
of
of
Rodents”
Rodents”
its
its
Rodents”
in
its
is
is
is
March
and
original).
March
substantially
March
substantially
substantially
18,
18,
IN
18,
TN
TN
can
Weatherability
2009,
2009,
THE
2009,
THE
regarding
THE
regarding
2,
2,
regarding
2,
be
2005
2005
2005
used
ORIGINAL
Respondent
ORIGINAL
Respondent
ORIGINAL
Respondent
Work
different
different
different
“accepted
“accepted
“accepted
under
“Rozol,”
“Rozol,”
“Rozol,” 45
- No
-
diverse
than
than
Rozol
than
made
COMPLAINT
made
COMPLAINT
made
COMPLAINT
need
label.”
label.”
EPA
label.”
EPA
EPA
any
any
any
the
does
the
weather
to
the
Reg.
Reg.
claim
Reg.
claim
claim
pre-treat
following
following
following
not
No.
No.
No.
made
made
lose
conditions.”
made
REMOVED
REMOVED
REMOVED
7
7173-244,
7
and
173-244,
173-244,
its
claims
for
claims
for
claims
for
effectiveness
less
“Rozol,”
“Rozol,”
“Rozol,”
repeat
in
in
(Emphasis
on
in
IN
on
IN
on
TN
its
its
its
AMENDED
AMENDED
AMENDED
brochure
brochure
EPA
brochure
EPA
EPA
when
Reg.
in
Reg.
Reg. wet
same
www.liphatech.com.
www.liphatech.com.
same
www.liphatech.com.
same
No.
COMPLAINT.
(Emphasis
Livestock
www.liphatech.com:
7173-244,
claims
claims
claims
334.
333.
332.
331.
330.
329.
328. 327.
-
in
as
Rozol’
as
as
original,
On
On
On
On
On
On
PARAGRAPH
it
This
as
it
it
did
did
did
part
February
February
February
February
February
February
s
claim
primary
on
on
on
“Lower
of
footnote
November
November
November
its
is
23,
23,
March
19,
19,
10,
10,
substantially
toxicity
Primary
TN
2010,
2010,
2010,
2010,
deleted).
2010,
2010,
THE
2,
18,
18,
18,
to
2005
this
Respondent’s
Respondent’s
this
Respondent’s
this
2009.
2009.
2009.
ORIGINAL
Poisoning
birds
different
inspector
inspector
inspector
“accepted
is
46
much
Potential
than
conducted
website
conducted
COMPLAINT
website
conducted
website
labeL”
less
any
than
claim
at
at
at
to
www.liphatech.com
another
www.liphatech.com
another
www.liphatech.com
another
that
Non-Target
made
REMOVED
of
acute
search
search
search
for
“Rozol,”
toxicants.”
Birds
of
of
of
TN
and
made
AMENDED
made
made
EPA
the
the
the Reg.
term
www.liphatech.com,
2010,
2010,
2010,
No.
COMPLAINT.
readily
18, use.”
Information
2009,
7173-244,
is
constitutes
constitutes
constitutes
defined
342.
341.
340.
339.
338.
337.
336.
available
335.
constitutes
sheet
On
The
The
The
The
PARAGRAPH
This
in
as
On
advertisements,
advertisements,
advertisements, and
Section part
November
regarding
February
information
information
information
information
claim
offered
advertisements,
less
of
its
2(gg)
toxic
is
March
23,
substantially
“Rozol,”
“Rozol,”
18,
regarding
IN
than
on
on
Claims
on
on
of
2010,
2009
subject
subject
subject
THE
FIFRA,
Respondent’s
Respondent’s
Respondent’s
Respondent’s
2,
strychnine-treated
subject
2005
EPA
EPA
Respondent
through
in
ORIGINAL
“Rozol
to
to
to
on
different
the
7
“accepted
Reg.
Reg.
the
the
the
U.S.C. February
to
Product
47
February
requirements
requirements
requirements the
,
No.
No.
website
website
website website
“
EPA
made
than
requirements
COMPLAINT
§
7173-244,
7
label.”
136(gg),
173-244,
Information
23,
millo
any
Reg.
the
23,
at
at
at
at
2010
www.liphatech.com,
www.liphatech.com.
www.liphatech.com,
www.liphatech.com,
claim
2010, following
products
of
of
of
No.
and
40
40
on
40
for
of
7173-244
made
Respondent’s
www.liphatech.com:
C.F.R.
C.F.R.
C.F.R.
REMOVED
40
distribution
40
Sheet
labeled
C.F.R.
C.F.R.
claims
for
§
§
§
“Rozol,”
168.22. 168.22.
168.22.
§
for
in
§
or
152.3.
168.22.
TN
it
website,
on
on on
on
burrow-builder
sale
Product
AMENDED
February
February
February
November
EPA
as
“More
that
Reg.
23,
19, 10, 343. The claims made on Respondent’s website from November 18, 2009 through
February 23, 2010, were made as a part of the distribution or sale of “Rozol,” EPA Reg. No.
7173-244.
344. On November 18, 2009 through February 23, 2010, Respondent’s website, www.liphatech.com, offered “Rozol Prairie Dog Bait,” EPA Reg. No. 7173-286, for distribution or sale as that term is defined in Section 2(gg) of FIFRA, 7 U.S.C. § 136(gg), and 40 C.F.R.
§ 152.3.
345. The claims made on Respondent’s website from November 18, 2009 through
February 23, 2010, were made as apart of the distribution or sale of “Rozol Prairie Dog Bait,”
EPA Reg. No. 7173-286.
346. On March 4, 2010, due to the claims Respondent was making on its website, www.liphatech.com, from November 18, 2009 through February 23, 2010, EPA issued another
SSURO to Respondent regarding “Rozol,” EPA Reg. No. 7173-244.
347. The March 4, 2010 SSURO also addressed “Rozol Prairie Dog Bait,” EPA Reg.
No. 7173-286.’
348. Under the August 22, 2008 Amended SSURO, Respondent was prohibited from distributing marketing material or labeling regarding “Rozol,” EPA Reg. No. 7173-244, until any such material was reviewed by EPA.
349. EPA did not approve nor authorize the advertisements that were found on
Respondent’s website, www.liphatech.com, on November 18, 2009, February 10, 2010, February
19, 2010, and February 23, 2010 regarding “Rozol,” EPA Reg. No. 7173-244.
The March 4,2010 SSURO also covered a third product. “Rozol Pocket Gopher Bait,” EPA Reg. No. 7173-84.
48 350. EPA did not approve nor authorize the advertisements that were found on
Respondent’s website, www.liphatech.com, on November 18, 2009, February 10, 2010, February
19, 2010, and February 23, 2010 regarding “Rozol Prairie Dog Bait,” EPA Reg. No. 7173-286.
351. EPA did not approve the distribution of any advertisements that were found on
Respondent’s website, www.liphatech.com, on November 18, 2009, February 10, 2010, February
19, 2010 and February 23, 2010 in the form of any literature, flyers, or advertisements to
Respondent’s distributor partners for either “Rozol,” EPA Reg. No. 7173-244, nor “Rozol Prairie
Dog Bait,” EPA Reg. No. 7173-286.
352. After the March 4, 2010 Federal SSURO was issued, Respondent sent letters to
48 of its distribution partners (See Attachment I) requesting that they each destroy/disregard “any
and all literature, flyers, advertisements” regarding “Rozol,” EPA Reg. No. 7173-244, and
“Rozol Prairie Dog Bait,” EPA Reg. No. 7173-286, including brochures entitled “Control Range
Rodents, “dated September 24, 2009 or older.
353. The claims made to Respondent’s 48 distribution partners through its
advertisements, which included brochures entitled “Control Range Rodents,” dated September
24, 2009 or older, were made as a part of the distribution or sale of “Rozol,” EPA Reg. No.
7173-244.
354. The claims made to Respondent’s 48 distribution partners through its
advertisements, which included brochures entitled “Control Range Rodents, “ dated September
24, 2009 or older, were made as a part of the distribution or sale of”Rozol Prairie Dog Bait,”
EPA Reg. No. 7173-286.
49