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
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
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
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.
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 ...