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WILMINGTON CHEMICAL CORPORATION v. CELEBREZZE

May 19, 1964

WILMINGTON CHEMICAL CORPORATION, PLAINTIFF,
v.
ANTHONY J. CELEBREZZE, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, DEFENDANT.



The opinion of the court was delivered by: Robson, District Judge.

Plaintiff has sued for a declaratory judgment that its product, known as "X-33," is labeled in conformance with the provisions of the Federal Hazardous Substances Labeling Act, 15 U.S.C. § 1261-1273, and that the determination of the Food and Drug Administration relating to X-33 can be applicable only to that product which is shipped subsequently to the promulgation of the ruling.

X-33 is a water repellent product which plaintiff began manufacturing and distributing in April of 1961. In mid-1963 some charges in litigation laid one death, several injuries, and explosions to the use of the product. These occurrences resulted in plaintiff's being advised in August, 1963, that the theretofore approved label was no longer in compliance with the Labeling Act, and by letter of Malcolm R. Stephens, dated September 27, 1963, plaintiff alleges it "was suddenly advised * * * that usage of certain words would bring the label into compliance * * * [and] * * * that unless all labels were changed to include this new language, they would immediately begin seizing all of the product. This demand encompassed all shipments made to retail dealers since the Summer of 1961, which amounted to approximately two thousand four hundred (2400) separate and distinct sales."

Plaintiff states that it has been informed that no administrative review exists, and alleges it will suffer immediate and irreparable injury from the threatened seizure of its product.

The bases on which defendant predicates his motion to dismiss are: The Court is without jurisdiction because the suit is in effect a suit against the United States which has not consented to be sued; the Court is also without jurisdiction because the Attorney General has not been made a party and he is an indispensable party; and, finally, the complaint fails to state a claim under the Declaratory Judgments Act, 28 U.S.C. § 2201, 2202, because there is present no justiciable controversy.

The Government also moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on the merits "in that the affidavits and exhibits attached to this motion show that the label of plaintiff's product, X-33 Water Repellent, is not in conformity with the provisions of the Federal Hazardous Substances Labeling Act."

The memorandum in support of the defendant's motion states that X-33 is a water repellent which is "extremely flammable" within the meaning of the Act, 15 U.S.C. § 1261(l), having a "flash point at or below 20 degrees Fahrenheit." In some respects it was found to have a minus 40 degrees Fahrenheit flash point making it highly dangerous for the householder to use.

Plaintiff maintains, on the other hand, that a justiciable controversy exists because of the threatened seizure of the product manufactured by it since April, 1961, because not in conformance with the ruling given retroactive force.

In the latter part of 1962 the Food and Drug Administration had approved the label which the plaintiff was using, finding it in compliance with the Act. Plaintiff was later advised that the label was not in conformance with the Act, and after conference was told that irrespective of the words placed on the new label the phraseology would be unacceptable.

Then, in September, 1963, plaintiff was suddenly advised that usage of certain words would bring the label into compliance and unless the change was immediately effected on all shipments made since the Summer of 1961, the 2,400 separate sales thereof by plaintiff would be seized.

The Government's brief indicates some thirty seizure suits are pending, and to contest the seizures and seek consolidation of the many suits plaintiff would have to purchase the respective dealers' interests by reimbursing them.

Plaintiff contends that to require it to comply retroactively is "an unjust, arbitrary and illegal exercise of the powers granted" the Department. It also maintains that it is unnecessary to make the United States a party, nor is it an indispensable party because the official's act here complained of was so clearly in excess of his statutory authority that the suit can be against him alone.

Exhibit A to defendant's motion for summary judgment presents the contents of a label he would consider adequate compliance. It sounds a "minimum warning" on the main panel, disclosing danger, that the product was extremely flammable, the vapors highly explosive, and harmful or fatal if swallowed. It alerts the user to read the additional warning on the side panel before using the product, and further instructs as to safety procedure to be followed in its use.

Plaintiff did not offer to recall the previously sold product now deemed by defendant inadequately labeled. As defendant points out, the letters written by his Department do not constitute rules or regulations so as to be administrative action reviewable by a court.

The September 27, 1963, seven-page letter of the Director of the Bureau of Enforcement was equivalent to a proffer of further basis for negotiation, not a final order which this Court should review in a declaratory judgment suit. Alternative courses were offered to plaintiff therein as to previously sold cans, i.e., recall thereof for relabeling or requesting the dealers in possession of ...


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