Department of Pesticide Regulation

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March 24, 2000

ENF 2000-014

TO: County Agricultural Commissioners

SUBJECT: LABEL INTERPRETATION FOR GRAMOXONE EXTRA HERBICIDE

This letter responds to a request for a label interpretation concerning Gramoxone Extra Herbicide (U.S. EPA Registration No. 10182-280-AA) labeling relative to potential violations of Food and Agricultural Code (FAC) section 12973.

The first question asked if certain Gramoxone Extra Herbicide labeling statements are not complied with by a handler (whether in the course of a legitimate use or by someone who purposely misuses the product) would the act result in a violation of FAC section 12973. Examples of these labeling statements are:

"Never put into food, drink, or other containers."
"Do not get into eyes or on clothing."
"Do not apply directly to water, or to areas where surface water is present, or to intertidal areas below the mean high water mark."
"Do not apply this product in a way that will contact workers or other persons, either directly or through drift."
"Do not use around home gardens, schools, recreational parks, golf courses, or playgrounds."
"Do not enter or allow worker entry into treated areas during the restricted-entry interval (REI) of 24 hours."

If the user did not comply with one or more of these requirements, there would be a violation of FAC section 12973.

The examples above are all directional statements. Directional statements are conditions of use and generally must be followed or a violation of FAC section 12973 (conflict with labeling) occurs. The definitions of "conflict with labeling" and "use" can be found in section 6000 of Title 3 of the California Code of Regulations (3CCR ).

Labeling statements can be divided into two general groups based upon their semantic structure: those that are informational and those that are directional. Guidance as to directional versus informational labeling statements is found in the Department of Pesticide Regulation's Manual of Procedural Guidance for Pesticide Enforcement Personnel, Chapter 15-Labeling, page 86, which follows:

Informational statements provide facts or information about the product such as "contents-five gallons," "flammable mixture," "this product is toxic to fish," or "frequent applications may cause the appearance of visible spray residues on foliage." Information about health or environmental hazards included in the labeling can be used as evidence that the user (or adviser) knew or should have known about the hazard. If necessary precautions were not taken, this can be used to support enforcement action based on negligent operation. Directional statements address how the product must be used or handled.

The labeling statements you gave are directional statements. Other examples are "wear a respirator," "mix one quart per ten gallons," "keep away from heat or open flame," "do not contaminate water," or "do not make more than two applications per season."

The second question asked if there are limitations as to what portions of the label (i.e., Environmental Hazards, Directions for Use, Storage and Disposal, etc.) can be used to support a violation?

The answer to this question is no. As discussed above, directional labeling statements must be followed or a violation of FAC section 12973 occurs. Informational labeling statements can be used as evidence to support enforcement action based on negligent operation (3CCR section 6600). Therefore, there are no limitations as to what portions of the label can be used to support a violation.

It should be noted that labeling statements can be more ambiguous than laws or regulations and, therefore, more open to interpretation. Also, it is appropriate to interpret labeling statements in the context of the entire label. This often means that an action based on a label statement must be very thorough and address all issues that may arise in a hearing. It is also important to base the action on the exact wording of the label statement. For example, the labeling statement, "Do not get in eyes" is not the same as requiring eye protection equipment. A handler may avoid contact with the eyes by other means such as engineering controls. In order to prove a violation of this statement, you would need to prove that the product actually contacted the handler's eyes. Also you would want to paint a complete picture of the circumstances involved. This would include the eye hazard of the product, labeling statements which identify the hazard, the situational hazards involved in the specific task being performed by the handler, and the lack of any precautions taken to mitigate the hazard exclusive of wearing eye protection equipment.

If you have any questions, please contact the Senior Pesticide Use Specialist Liaison serving your county.

Sincerely,

original signed by

David Duncan, Acting Chief
Pesticide Enforcement Branch
(916) 445-3871

cc: Mr. Daniel J. Merkley, Agricultural Commissioner Liaison