&quot;In a manner inconsistent with its labeling&quot;: What&#39;s the deal with all the exceptions? 7 USC 136 (ee) defines what it means when the government says "To use any registered pesticide in a manner inconsistent with its labeling". It is loaded with exceptions in a mighty wall of text and run-on sentence. What does it all mean in practical practice? (ee) To use any registered pesticide in a manner inconsistent with its labeling The term “to use any registered pesticide in a manner inconsistent with its labeling” means to use any registered pesticide in a manner not permitted by the labeling.... ..... except that the term shall not include (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment, (3) employing any method of application not prohibited by the labeling unless the labeling specifically states that the product may be applied only by the methods specified on the labeling, (4) mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited by the labeling, (5) any use of a pesticide in conformance with section 136c, 136p, or 136v of this title, or (6) any use of a pesticide in a manner that the Administrator determines to be consistent with the purposes of this subchapter. After March 31, 1979, the term shall not include the use of a pesticide for agricultural or forestry purposes at a dilution less than label dosage unless before or after that date the Administrator issues a regulation or advisory opinion consistent with the study provided for in section 27(b) of the Federal Pesticide Act of 1978, which regulation or advisory opinion specifically requires the use of definite amounts of dilution. So what are all those exceptions about, in actual practice?
Certified applicator here. Needless to say, every exception has a reason, and was lobbied for by applicators, manufacturers, or common sense. Let's run through them. (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, This is mainly about rinsate. When you're done spraying, you have a bunch of flushing out to do. The empty jugs or barrels need to be triple rinsed with agitation (fill-shake-dump 3x). The dregs of the premix tank have to go, and the tank rinsed out with clean water. The spray equipment needs to be purged (not least so the acidic or basic pesticide doesn't corrode it). This yields a lot of "contaminated" water which is simply water + the pesticide at a lower-than-normal concentration. This is called rinsate. You also sometimes end up with "leftover mix" or "mistake mix"; like 200 gallons of pre-mixed {Roundup? 2,4-D?) that a non-certified predecessor left behind. I don't know what that is, so I'll dilute it enough that it's definitely below maximums. So you have all this chemical that is highly diluted, of ??? dilution but well below maxima. Can't dump it on the ground. Can't dump it down the drain. My friend says "How do you dispose of old paint? Paint something you don't want, then throw it away." And that's exactly what you do: identify locations that are legal to spray the stuff, and spray it there. It's much weaker, of course. This exception (1) is specifically to allow for this case. Of course you know you need to run a full antibiotic treatment, or you'll just breed antibiotic-resistant bacteria. Some cases are like that, and the product labeling will tell you "don't under-use". That's what the "unless" is for. Presumably in that case they'll tell you what to do with the rinsate. (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment, The first part of this is for accidental or collateral damage: think about how civilians figure into the rules of war. You can't go "12 civilians, shoot them", but you can go "11 soldiers, 1 civilian, shoot them". Suppose you're spraying 2,4-D on your yard, at a 1.5 lb/acre rate (max 3.0) to suppress broadleaf (dandelions). "Lawns" are a crop specified on the labeling. Controlling broadleaf there is a labeled use, and therefore legal. Your yard also has butterflies. This is where the exception (2) comes into play. Since "the application is to the crop, animal, or site specified on the labeling" (2,4-D on lawns to control broadleaf), then, when the local butterfly admirer accuses you of applying a pesticide against any target pest not specified on the labeling (2,4-D is definitely not labeled for butterflies), you have a defense. The butterfly is the civilian you can't aim at, but it is not a war crime if you shoot at a soldier and hit a civilian by mistake. If the collateral damage becomes serious, e.g. there are big issues with pollinators (e.g. honeybees) being injured by pesticide use in factory farming, then the "Unless" clause allows the EPA to intervene and cancel exception (2) on a case-by-case basis. A consumer product might be pulled, or a commercial product will mention this in the (lengthy, fold-out) labeling. (3) employing any method of application not prohibited by the labeling unless the labeling specifically states that the product may be applied only by the methods specified on the labeling, That is to give you the versatility to apply as needed. Imagine you are a farmer. Most farm pesticides are sprayed from a land vehicle, and you use the highest concentration that is workable because water is heavy. But suppose you're far enough west that your cornfield is a circle and you use a rotary irrigator. You might mix the pesticide in with the irrigation water (at a dramatically lower concentration). This exception relieves the manufacturer of the obligation to cover every possible application method. But the factory is able to override this. (4) mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited by the labeling, Simply a labor-saver: to allow you to apply pesticide and fertilizer in one pass, which most gardeners appreciate. It also empowers products like weed-and-feed. (5) any use of a pesticide in conformance with section 136c, 136p, or 136v of this title, or (6) any use of a pesticide in a manner that the Administrator determines to be consistent with the purposes of this subchapter. These are statutory phrasing to enable other legislation or rulemaking. After March 31, 1979, the term shall not include the use of a pesticide for agricultural or forestry purposes at a dilution less than label dosage unless before or after that date the Administrator issues a regulation or advisory opinion consistent with the study provided for in section 27(b) of the Federal Pesticide Act of 1978, which regulation or advisory opinion specifically requires the use of definite amounts of dilution. This locks in the "right to over-dilute" (exception 1) for ag and forestry applications.
Yes, it is legal to sell something that uses another product as one of its ingredients. And yes, you can include the name of the product in the ingredients list. That said, if you do it and are successful enough you will probably get a cease and desist letter! The Supreme Court held a long time ago in Prestonettes, Inc. v. Coty that a buyer can purchase a trademarked good, repackage it, and then resell it. The defendant of course by virtue of its ownership had a right to compound or change what it bought, to divide either the original or the modified product, and to sell it so divided. The court reminds us that trademarks are not copyrights; they not confer a right to prohibit the use of a word or words. ...unquestionably the defendant has a right to communicate... that the trade-marked product is a constituent in the article now offered as new and changed. In this case the name of the original product was included on the package in non-distinct lettering; stating that the original product was contained in the new product. I mention this because the ultimate decision is fact-specific.* So the Supreme Court tells us that we can repackage trademarked goods. The court also tells us a bit about the label - we cannot call out the trademarked name as this might confuse consumers: If the [trademarked name] were allowed to be printed in different letters from the rest of the inscription dictated by the District Court a casual purchaser might look no further and might be deceived. So, what about that FDA, what do we need on the label? You find this answer in 21 CFR 101.4(b)(2). (b) The name of an ingredient shall be a specific name and not a collective (generic) name, except that: (1) Spices, flavorings, colorings and chemical preservatives shall be declared according to the provisions of §101.22. (2) An ingredient which itself contains two or more ingredients and which has an established common or usual name, conforms to a standard established pursuant to the Meat Inspection or Poultry Products Inspection Acts by the U.S. Department of Agriculture, or conforms to a definition and standard of identity established pursuant to section 401 of the Federal Food, Drug, and Cosmetic Act, shall be designated in the statement of ingredients on the label of such food by either of the following alternatives: (i) By declaring the established common or usual name of the ingredient followed by a parenthetical listing of all ingredients contained therein in descending order of predominance except that, if the ingredient is a food subject to a definition and standard of identity established in subchapter B of this chapter that has specific labeling provisions for optional ingredients, optional ingredients may be declared within the parenthetical listing in accordance with those provisions. (ii) By incorporating into the statement of ingredients in descending order of predominance in the finished food, the common or usual name of every component of the ingredient without listing the ingredient itself. Here is an example of (i): But also note the picture of the box. That Hershey's Kisses trademarked image indicates that there is an agreement between the companies. So only use this image as an example of 21 CFR 101.4(b)(2)(i) ingredients labeling - the box cover is not an example of nominative use. *This is nominative fair use and has been discussed in other questions on this site. Court of Appeals for the Ninth Circuit in New Kids on the Block v. News America Publishing, Inc.: one party may use or refer to the trademark of another if 1) The product or service cannot be readily identified without using the trademark; 2) The user only uses as much of the mark as is necessary for the identification; 3) The user does nothing to suggest sponsorship or endorsement by the trademark holder.
What statutory or prerogative authority is the FSA exercising when it allows such false labelling? As other answers have noted, they have executive discretion to &quot;turn a blind eye&quot; to what would normally be a violation of food safety laws and just decide that, right now, their government-mandated priorities are better served by not enforcing that particular letter of the law in these particular circumstances. In theory, someone could probably challenge that decision and take them to court over it, claiming that they were derelict in their duties or not acting impartially and in the public interest. However, in this case they'd probably have a pretty good defense against and such claims, both due to having explicit authority to make such decisions in emergencies (as also noted in other answers), and also because the decision itself seems pretty fair (it applies to all producers using sunflower oil in their products) and justified by the circumstances (more on that below). What public good is supposed to be being served here? It is stated that allowing items to be labelled &quot;sunflower oil&quot; that contain no sunflower oil &quot;[maintains] the supply of certain food products&quot;, but this is nonsensical because replacing a product with another product does not maintain its supply, regardless of whether the replacement product is labelled accurately or falsely. Labelling the replacement as being the product it replaced appears to maintain its supply, but it doesn't actually maintain its supply. That is fact rather than opinion. You seem to be assuming that this advice by the FAS is about allowing someone to sell bottles of &quot;sunflower oil&quot; that actually contain rapeseed oil. It's not. It's not even really about products like crisps (potato chips, for those not in the UK) or pesto sauce or margarine that might contain sunflower oil as a major ingredient. For those products, the news page you linked indicates there are separate rules that apparently require, at a minimum, applying a sticker to notify consumers about the substitution: &quot;where sunflower oil is a key ingredient, such as crisps, retailers will imprint information on substitute oil onto existing labels.&quot; However, think about all the other foodstuffs sold in stores that might include sunflower oil as a minor ingredient, like, say, granola, mustard sauce, instant noodles, mashed potato powder, microwave popcorn, frozen pizza, bolognese pasta sauce or just plain white bread. (If you're wondering where the random list of products above comes from, I just looked quickly around in my kitchen for products that had sunflower oil, rapeseed oil or some other neutral vegetable oil listed as a minor ingredient. There are surprisingly many.) I assume you would agree that all of these products would still be substantially the same product regardless of which kind of vegetable oil was used in them. The companies making all those products, and many others besides, typically order their product packaging in bulk, often from overseas, getting a new shipment of boxes or wrappers or labels maybe every few months or years. And of course those will all have the ingredients list printed on them, as mandated by law. If they want to change the ingredients, that means they have to send a new design to the company that makes the packaging and wait however many days or weeks or months it takes for the packaging company to make and ship the new packaging with the updated ingredients list to them. Normally that's not much of a problem, because normally food manufacturers don't tend to change ingredients in a hurry. Usually they'd plan such changes months in advance, order the new packaging well ahead of time and probably use up all of the old packaging they have in stock before actually making the switch so that they don't have to throw it away. (Companies that do need to frequently switch ingredients, e.g. due to seasonal or unpredictable availability, usually plan for that in advance e.g. by making their labels generic enough to accommodate the change or, where that's not allowed, finding workarounds like indicating the exact type or origin of the ingredients in codes that are stamped on the packaging late in the manufacturing process. That's why you occasionally see stuff in ingredients lists like &quot;vegetable oils (rapeseed, sunflower or soybean)&quot; or &quot;produced in EU and non-EU countries&quot; or &quot;see last letter of expiration code for country of origin: A = Spain, B = Morocco, C = Israel, D = China&quot;.) In this particular case, however, a lot of companies that had been using sunflower oil in their products, and expected it to remain easily available, were caught short when the war in Ukraine broke out and the price of sunflower oil suddenly went way up, as companies selling the oil realized that there probably wouldn't be much sunflower oil exported from Ukraine this year. At that point, the companies that had been using sunflower oil as a generic cooking oil in their products would normally have a limited number of options, none of them particularly good (for either the companies or consumers): Keep using sunflower oil at whatever cost and transfer the increased cost to consumer prices. (To make things worse, the more companies do this, the higher the price of sunflower oil will rise, as they're basically competing for a limited supply.) Switch to a different type of oil and order new packaging ASAP, hoping that it will arrive before your existing stock of sunflower oil runs out. (This might take longer than usual, since presumably other companies are also in the same situation, so the packaging makers are probably swamped with sudden orders. Also, your stock of old packaging is now useless, and you might have to throw it out.) Order the new packaging immediately and pay extra for expedited delivery. Again, you'd be competing with lots of other companies who also really want to be the first to get their new packaging, so premiums for fast delivery are likely to be high if you can get it at all. All of that extra cost will also likely transfer into consumer prices. Use the existing packaging but apply stickers with updated ingredients lists on top of the old ones. That's not nearly as easy and cheap as it sounds, not only because you still have to get the stickers printed (and the printing companies are probably also swamped with orders), but also because you'll have to apply them to every single box or bag or carton, likely by hand. That's a lot of expensive manual labor that will, again, likely increase consumer prices. Just halt production until you can get new, updated packaging (or more sunflower oil at a reasonable price). That's probably the worst option for both the manufacturers and the consumers, since it results in lots of lost income for the manufacturers and product shortages for the consumers. Still, if all the other options are even more expensive, some manufacturers might be forced to do this. The exceptional decision by the FAS to selectively enforce the food labeling requirements in this particular case basically offers these food manufacturers one more option: switch to an alternative type of oil now, but keep using the old packaging until you can replace it. Practically speaking that's probably the best outcome for almost everyone. There's really very little difference between sunflower and rapeseed oil — both are neutral, mostly flavorless vegetable oils suitable for generic cooking purposes — and most people probably can't really tell them apart, especially not when they're used as minor ingredients among many others. Of course, there may still be people who really don't like the taste of rapeseed oil (assuming they can taste it) or are allergic to it (which, as the news article you linked notes, is very rare) or have some ethical or religious objection to consuming it (not that I'm aware of any, but I'm sure someone out there has one). Hence the news release, so that those people who might be affected by the substitution can find about it in advance.
While less specific than the term mentioned by @DavidSiegel (i.e. an &quot;Antinomy&quot;), &quot;impossibility&quot;, &quot;impossibility of performance&quot;, and &quot;impracticability&quot; are more frequently used. If the obligation is imposed by contract rather than by a statute or regulation, the term &quot;frustration of purpose&quot; is also frequently used. Even more generally, a situation like this is called a &quot;dilemma.&quot; More obscurely, sometimes this gets litigated in the frame of whether non-compliance with the law was a voluntary act, i.e. the actus reus necessary to establish a prima facie case of a violation of a law imposing a criminal or quasi-criminal penalty. The &quot;choice of evils&quot; doctrine could also apply although this is a much narrower doctrine excusing liability than many people believe it to be. There are also a couple of other possible outcomes. Sometimes a court would treat this situations as an implied ambiguity or inconsistency in the law that calls for the court to interpret the true meaning of the statute or regulation. For example, in this circumstance, it is implausible that the statute or regulation was intended to put good faith vaccine distributors in a damned if you do, damned if you don't situation where they would be fined no matter what they did because conforming to the law was impossible. So a court might conclude that the requirement that &quot;If you don't use up your vaccine doses, you're getting a huge fine&quot; contains an implied condition that this only applies if there are sufficient people who eligible to obtain the vaccination to use all of your vaccine doses (which as as matter of practicality is very likely to be true, so it is something of a false conflict as applied in most cases). But it isn't at all uncommon for people to put themselves in situations where their on ill advised or wrongful conduct puts them in a position in which now, after their prior bad acts, anything they do will be a crime or a civil offense, and they are indeed damned if they do and damned if they don't. For example, if you start to attempt to steal a car and see a baby in the back, you can either continue, and face kidnapping charges and car theft charges, or you can stop after you have already done enough to make you guilty of attempted car theft even if you abandon the crime at that point to prevent yourself for kidnapping the child. No matter what you do, you are stuck committing one crime or another. But you actions will determine which crime you will be guilty of committing. The fact that at the final moment of decision that determines which crime you will be guilty of, any choice you make will expose you to criminal liability, doesn't make these laws invalid, because this Hobson's choice (using the term only loosely) is one that you brought that on yourself.
At the federal level, employment discrimination as prohibited here is at its core a tort rather than a crime. Probably the most pertinent first part of the law is Subpart B, which encompasses procedures. The EEOC (Equal Employment Opportunity Commission) may receive allegations of a violation, and there is a procedure for deciding on the merits of the case. After charges are filed, there is an investigation by the EEOC, which may include a public hearing. Based on the investigation, the commission may dismiss the charge (technical flaws in the complaint); they may issue a letter of determination to that effect if they find that there was no reasonable cause for the complaint. They can also encourage a negotiated settlement. In making this determination, the commission follows its own guidelines, as encoded in the regulations. So if the commission determines by its rules that there was a violation, the courts will generally defer to that finding unless the finding is contrary to what Congress said. If there is no dismissal or settlement, then they issue a determination that there is reasonable cause (§1601.21). Then there is a procedure to rectify unlawful practices, which includes the possibility of a conciliation agreement. Finally, starting at §1601.27, we get to the point that somebody might get their day in court. If the accused still refuses to relent on whatever point was at stake, the matter can go to trial: The Commission may bring a civil action against any respondent named in a charge not a government, governmental agency or political subdivision, after thirty (30) days from the date of the filing of a charge with the Commission unless a conciliation agreement acceptable to the Commission has been secured But also, the aggrieved can take the accused to court at any time. The allegation then must be proven by a preponderance of the evidence.
A reasonable hypothetical example of where your clause "C" would be applied: A defendant is written a citation for "spitting on the sidewalk," in violation of a hypothetical Portland city ordinance. In presenting extenuating details, the defendant indicates that the expectoration occurred because she had taken a bite of vended food that was belatedly discovered to have been infested with maggots. The notion of encountering rotted food would clearly not have been contemplated by the definition of the "spitting on the sidewalk" ordinance, where the notion of having a cheekful of chewing tobacco definitely would be.
Maybe, but it is not an easy thing to do. See MARSH v BAXTER [2014] WASC 187. To be successful the plaintiff would need to prove a failure to observe a duty of care (which would be difficult if regulations on GM crops had been followed) and some actual damage flowing from it.
From what I can determine, there has not been a legal challenge to the practice that reached a high enough level to get on my radar, so it's not clearly prohibited or allowed. Turning to the relevant federal regulations, the implementation of the Fair Housing Act, the law hinges in part on an Aggrieved person includes any person who— (a) Claims to have been injured by a discriminatory housing practice; or (b) Believes that such person will be injured by a discriminatory housing practice that is about to occur. In order to sue a university because they offer sex-separated halls, floors or rooms, a plaintiff would have to show that they have been harmed by being given such a choice. Reading the prohibitions in §100.50, there is no obvious "Discriminat[ion] in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities", and it does not "otherwise makes unavailable or denies dwellings". Cases like McLaurin v. Oklahoma State Regents, 339 U.S. 637 (a case putting an end to the "separate but equal" doctrine) include reference to the fact that appellant was harmed ("The restrictions imposed upon appellant impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession"). Analogously, the relatively rare black-only residences of UC Davis and Cal State LA might be targeted in a discrimination suit, if plaintiffs can make the required legal argument that there is harm.