The opinion of the court was delivered by: Gilbert, District Judge.
This matter is before the Court on Defendants' joint motion to dismiss the charges against them and to declare 7 U.S.C. § 136j(a)(2)(G) unconstitutional (Doc. 43). Defendants submitted a memorandum in support of their motion (Doc. 44), to which the government has responded (Doc. 47) and Defendants have replied (Doc. 53). The Court heard oral argument on this motion on February 16, 2006. Having considered the briefs and arguments in this case, the Court finds that 7 U.S.C. § 136j(a)(2)(G) ("the statute") is unconstitutionally vague as applied here insofar as it incorporates certain provisions from the labels of two pesticides, AAtrex 4L ("AAtrex") and Bicep II Magnum ("Bicep"). Therefore, Defendants' motion (Doc. 43) is GRANTED and the charges against the Defendants in this case are DISMISSED.
The incident giving rise to this prosecution took place on May 8, 2000. On that date, defendant Noah Horton ("Horton"), a Wabash Valley Service Company ("Wabash") employee applied two restricted-use pesticides subject to the provisions of the Federal Insecticide Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq. ("FIFRA"), to a farm in Hamilton County, Illinois. Horton applied pesticides that had been impregnated*fn1 onto fertilizer pellets using an "air flow application rig" -- a tractor-like vehicle fitted with booms. Elaine Zohfield ("Zohfield"), a neighbor who observed (and videotaped) Horton's application of the pesticides, complained to authorities about Horton's activities because she was worried that these pesticides would drift, and then saw (and filmed) these pesticides drifting onto her land. According to records kept by Wabash, the wind that day was blowing at approximately 20 m.p.h. toward Zohfield's farm. At trial, the government intends to show that when applicators apply pesticides through the impregnated fertilizer method, the pebble-like fertilizer pellets break down and generate fine particles that can drift when the weather conditions are not appropriate for application. The government claims the windy conditions that day caused this pellet dust to drift onto Zohfield's property.
The pesticides used by Horton that day, AAtrex and Bicep, both contain the chemical atrazine. The EPA has classified these chemicals restricted-use pesticides because of atrazine's toxicity to aquatic life. In its offer of proof, the government submits that Horton applied these pesticides illegally because he did so contrary to three specific provisions contained in the AAtrex and Bicep labels. The first two provisions appear on both labels: "Do not apply this product in a way that will contact workers or other persons, either directly or through drift;"(Doc. 44-2 at 2, 44-4 at 2) and "To avoid spray drift, do not apply under windy conditions."(Doc. 44-2 at 3, Doc. 44-4 at 3). The government also claims Horton failed to comply with a second provision of the AAtrex label which reads "Do not apply when weather conditions favor drift from treated areas." (Doc. 44-5 at 7). In its brief and at oral argument, the government represented that these three provisions are different ways of saying the same thing: Do not apply when it is too windy. (Mtn. Hrg. Tr. at 44).
The statute reads as follows: "It shall be unlawful for any person . . . to use any registered pesticide in a manner inconsistent with its labeling." 7 U.S.C. § 136j(a)(2)(G). It simply incorporates the label provisions of registered-use pesticides into itself and provides for criminal penalties for the failure to comply with them. Defendants claim the three provisions under which the government is bringing its case are so vague that they make the statute unconstitutional as applied. They also claim it is void on its face for reasons the Court will discuss below.
The most recent Supreme Court case giving the vagueness doctrine in-depth treatment was City of Chicago v. Morales, 527 U.S. 41 (1999). There, the Supreme Court found the statute at issue unconstitutionally vague, but did so in a plurality decision. Because the decision was a plurality, Morales left the Supreme Court's vagueness jurisprudence unclear. The broad outlines of the doctrine, however, are relatively clear. "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A law must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly." Id. In other words, the statute must be sufficiently clear to provide individuals with fair notice that their conduct is prohibited. In addition, a criminal statute must define the conduct prohibited under in its terms "in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). The Supreme Court has sometimes characterized the enforcement facet of the vagueness doctrine as the most "important." Id. at 358. It has focused on this dimension because the lack of minimal guidelines for enforcement "may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." Id. (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)).
When a statute purports to regulate constitutionally protected conduct, the Court has said that a statute can be held unconstitutionally vague on its face despite the fact that the statute may not be unconstitutionally vague in all its applications. Kolender, 461 U.S. at 358 n.8 (collecting cases). Whether a court should, and the extent to which a court can, invalidate a statute on its face has been the subject of a heated debate over the years. See, e.g., id. at 371 (White, J., dissenting). Some members of the Court have attempted to draw a distinction between constitutionally protected conduct generally, and conduct protected by the First Amendment. In any event, a majority of the Court -- some justices more grudgingly than others -- has determined that the "overbreadth" doctrine allows for facial invalidation of statutes that implicate First Amendment freedoms. Morales, 527 U.S. at 52. Under this doctrine, a law inhibiting the exercise of First Amendment rights may be facially invalid if the "impermissible applications of the law are substantial when 'judged in relation to the statute's plainly legitimate sweep'." Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973)).
In Morales, Justice Stevens, joined by Justices Souter and Ginsburg, found that courts may declare statutes facially invalid for vagueness under the overbreadth doctrine and in a second situation, where a statute "fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests." 527 U.S. 41, 52 (1999) (citing Kolender, 461 U.S. at 358). In making this finding, the Court suggested that a statute that regulates business activity only, and does not implicate other constitutional rights might not be subject to a facial attack in the second circumstance. Id. at 55 ("This is not an ordinance that simply regulates business behavior and contains a scienter requirement. It is a criminal law that contains no mens rea requirement and infringes on constitutionally protected rights. When vagueness permeates the text of such a law, it is subject to facial attack.") (internal citations and footnote omitted). That two separate avenues for facial invalidation exist was not a position that a majority of the Morales Court accepted. Justice Scalia, for example, questioned the propriety of ever declaring a statute invalid on its face, citing advisory opinion concerns. Morales, 527 U.S. at 77 (Scalia, J. dissenting). Acknowledging that the Court had found, on a number of occasions, statutes facially invalid, Justice Scalia noted that the Court had only done so when the litigant established that the statute at issue was unconstitutional in all its applications. Id. For this proposition, Scalia relied on, among other cases, United States v. Salerno, 481 U.S. 739 (1987). There, the Court said "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Morales, 527 U.S. at 78-79 (Scalia, J. dissenting) (quoting Salerno, 481 U.S. at 745). The above analysis is necessary here, because the parties take the respective positions of the two main factions of the Morales Court, Defendants asserting the position espoused by Justice Stevens, and the government championing the position of Justice Scalia.
Significantly, the Supreme Court and the Seventh Circuit have indicated that non-First Amendment-implicating statutes are not subject to facial attack. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (vagueness claims not implicating First Amendment concerns must be evaluated as-applied only); see also United States v. Cherry, 938 F.2d 748, 753 (7th Cir. 1991) (same). The Seventh Circuit, for its part, has not taken a consistent position on the Salerno issue. In A Woman's Choice-East Side Women's Clinic v. Newman, the Seventh Circuit characterized Salerno's"no set of circumstances" language as a suggestion not essential to the judgment in that case, and disregarded it in favor of contrary Supreme Court authority. 305 F.3d 684, 687 (7th Cir. 2002) ("Given the incompatibility between Salerno'slanguage and Stenberg's[v. Carhart, 530 U.S. 914 (2000)] holding, it is the language of Salerno that must give way."); see also Karlin v. Foust, 188 F.3d 446, 483 (7th Cir. 1999) ("In Casey, the Court appears to have tempered, if not rejected, Salerno'sstringent 'no set of circumstances' standard in the abortion context."). On the other hand, the Court indicated the "no set of circumstances" test is the law of the circuit in Daniels v. Area Plan Comm'n of Allen County, 306 F.3d 445, 467 (7th Cir. 2002) ("[T]o mount a successful facial challenge the plaintiff must establish that no set of circumstances exists under which the Act would be valid.") (internal quotation and citation omitted). Significantly, the Supreme Court has said that "economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action." Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (footnote omitted). As a final general matter, it is necessary for the Court to consider the following admonition from the Supreme Court in United States v. National Dairy Products Corp., The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases . . . . [A] limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were . . . presented. We might add that application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy. 372 U.S.29, 32 (1963) (quoting United States v. Raines, 362 U.S. 17, 22 (1960)). With these considerations in mind, the Court will address the specific claims in this case.
Defendants claim the statute is void on its face because the phrase "manner inconsistent with its labeling" does not apprise applicators of which actions taken inconsistent with product labeling will subject them to criminal sanction. The labels placed on pesticides subject to FIFRA contain a number of safety indications as well as suggestions as to efficient and proper product use. One such suggestion reads: "For best results, apply [Bicep] to weed-free soil following use of a preplant surface, preplant incorporated, or preemergence herbicide, or following a lay-by cultivation. . . ." (Doc. 44-4 at 4). Thus, under a straightforward application of 7 U.S.C. § 136j(a)(2)(G), Defendants maintain that an individual could be subject to criminal sanction if he failed to follow the above-quoted suggestion. This uncertainty, claim Defendants, forces commercial applicators to speculate as to which inconsistent acts are criminal. That the statute forces them, among others, to speculate as to which provisions they must strictly adhere to makes this statute unconstitutionally vague in accordance with Stevens's plurality opinion in Morales.
The government does not believe Defendants may challenge this statute facially because it does not implicate First Amendment concerns. Maynard, 486 U.S. at 361; Cherry, 938 F.2d at 753. The government does however, address the merits of Defendants' facial challenge. As a starting point for analysis, the government directs the Court to United States v. Corbin Farm Service, 444 F.Supp. 510 (D.C. Cal. 1978), the only reported case addressing the vagueness of the statute. In Corbin Farm Service, the court found that the phrase "inconsistent with its labeling" was not vague. Id. at 516-17. Interpreting the statutory language the court stated, "It is clear enough that, if one applies a pesticide in a way contrary to the directions on the label, one has violated the statute." Id. at 516. In that case, the court found that courts reviewing the statute here should "not be too demanding" and that it would not find the statute vague "simply because [it might be difficult to determine] whether certain marginal offenses fall within their language." Id. at 515, 516 (second quotation from National Dairy Products Corp., 372 U.S. at 32-33).
In its more precise application, the government claims the statute does not really force applicators to speculate what conduct will subject them to criminal sanction. It claims common sense and experience allow applicators to determine which portions of the labels are advisory and which are mandatory. A sentence beginning "Do not apply . . ." is plainly distinguishable from one that begins "For best results . . ." Further, the government claims that the nature of the criminal prohibition in the statute is clear to those to which it applies. Though not in force at the time of the incident here, the government cites to a Pesticide Registration Notice (an EPA policy document) published by the EPA, which allegedly makes the interaction between the statute and the labels clear. In Pesticide Registration Notice 2000-5*fn2 the EPA distinguishes between mandatory labeling statements -- statements that include imperative verbs such as "must" or "shall" -- and advisory statements -- those written in descriptive or "nondirective" terms. U.S. ENVIRONMENTAL PROTECTION AGENCY, PESTICIDE REGULATION (PR) NOTICE 2000-5: GUIDANCE FOR MANDATORY AND ADVISORY LABELING STATEMENTS, at http://www.epa.gov/PR_Notices/pr2000-5.htm. (last visited Mar. 12, 2006) [hereinafter PR NOTICE 2000-5]. These advisory statements merely "provide information to the product user on such topics as product characteristics and how to maximize safety and efficacy while using the product." PR NOTICE 2000-5. The government believes this statement makes the law clear and asks the Court to consider the EPA's construction here. See Kolender, 461 U.S. at 355.
After reviewing the law and arguments, the Court concludes that Defendants cannot make a facial challenge to this statute. The Supreme Court and the Seventh Circuit have held in Maynard and Cherry respectively, that facial challenges are only appropriate to those cases that implicate the First Amendment. In any event, the plurality which suggested that a non-First Amendment-implicating statute could be subject to a facial attack indicated that such would not be the case for the regulation of business activity which did not implicate other constitutional rights. As the statute at ...