appellants' opening brief · third appellate district no. c066493 george hahn, an individual,...
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
No. C066493
GEORGE HAHN, an individual,
CALIFORNIA VERMICULTURE, LLC, and a California corporation,
individually and as successor in interest to GEORGE HAHN dba
CALIFORNIA VERMICULTURE/TREE & PLANT RESCUE,
Plaintiffs and Appellants,
v.
CALIFORNIA DEPARTMENT OF PESTICIDE REGULATION,
Defendant and Respondent.
On Appeal from the Superior Court of Sacramento County
(Case No. 34-2009-80000361, Honorable Timothy M. Frawley, Judge)
APPELLANTS’ OPENING BRIEF
DEBORAH J. LA FETRA, No. 148875
TIMOTHY SANDEFUR, No. 224436
BRANDON M. MIDDLETON, No. 255699
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, California 95834
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
Attorneys for Plaintiffs and Appellants
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State of California
Court of Appeal
Third Appellate District
CERTIFICATE OF INTERESTED ENTITIES OR PERSONSCalifornia Rules of Court, rules 8.208, 8.490(I), 8.494(c), 8.496(c), or 8.498(d)
Court of Appeal Case Caption:
George Hahn, et al.
v.
California Department of Pesticide Regulation
Court of Appeal Case Number: C066493
Please check here if applicable:
G There are no interested entities or persons to list in this Certificate
as defined in the California Rules of Court.
Name of Interested Entity or Person
(Alphabetical order, please.)
Nature of Interest
1. George Hahn Owner
2.
3.
Please attach additional sheets with Entity or Person information, if necessary.
_____________________________________ May 6, 2011.
TIMOTHY SANDEFUR
Printed Name: Timothy Sandefur
State Bar No: 224436
Firm Name & Address: Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, CA 95834
Party Represented: Plaintiffs and Appellants
ATTACH PROOF OF SERVICE ON ALL PARTIES WITH YOUR CERTIFICATE
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TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. “Worm Gold” Brand Fertilizers . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. How Worm Gold Brand Fertilizers
Make Plants Resistant to Pests . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Worm Gold Sales and Advertising . . . . . . . . . . . . . . . . . . . . . . . . 9
D. DPR’s Investigations and Citations of Hahn . . . . . . . . . . . . . . . 12
QUESTION PRESENTED
AND STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I. THE SUPERIOR COURT ERRED IN
HOLDING THAT ANY PRODUCT OF
WHATEVER NATURE IS A “PESTICIDE” IF IT IS
EVER DESCRIBED AS CAUSING PEST AVOIDANCE . . . . . . . 15
A. Worm Gold Products Are Not Actually Pesticides . . . . . . . . . . 15
B. A Product That Repels Pests Only Indirectly Through a
Plant’s Natural Bioresistant Processes Is Not a Pesticide . . . . . 16
II. THE SUPERIOR COURT ERRED IN
HOLDING THAT A NON-PESTICIDE
PRODUCT BECOMES A PESTICIDE IF A
PERSON MAKES A “PESTICIDAL CLAIM” THAT THE
PRODUCT INDIRECTLY CAUSES PEST REPELLENCY . . . . . 22
Page
- iii -
A. The Decision Below Leads to Absurd Results . . . . . . . . . . . . . . 23
B. The Decision Below Is Contrary to Precedent . . . . . . . . . . . . . . 26
C. “Pesticidal Claim” Is Not an Element of Any Statute
or Regulation and Is an Undefined and Vague Term . . . . . . . . . 28
D. The Superior Court’s Expansive Interpretation of the
Statute Threatens Important First Amendment Rights . . . . . . . . 30
E. DPR Should Not Be Allowed to Expand
Its Authority Through an Extreme and
Unreasonable Interpretation of the Statute . . . . . . . . . . . . . . . . . 33
III. HAHN DID NOT MARKET WORM GOLD
BRAND FERTILIZERS AS PESTICIDES . . . . . . . . . . . . . . . . . . . 37
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
DECLARATION OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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TABLE OF AUTHORITIES
Page
Cases
Abuelhawa v. United States, 129 S. Ct. 2102 (2009) . . . . . . . . . . . . . . . . . 14
Byrum v. Landreth, 566 F.3d 442 (5th Cir. 2009) . . . . . . . . . . . . . . . . 31-32
Canon v. Justice Court, 61 Cal. 2d 446 (1964) . . . . . . . . . . . . . . . . . . . . . 32
Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co.,
20 Cal. 4th 163 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Coal. of Concerned Communities, Inc. v. City of Los Angeles,
34 Cal. 4th 733 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 26
Foxgate Homeowners’ Ass’n v. Bramalea California, Inc.,
26 Cal. 4th 1 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
In re Actimmune Mktg. Litig.,
614 F. Supp. 2d 1037 (N.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 31
Leslie’s Pool Mart, Inc. v. Dep’t of Food & Agric.,
223 Cal. App. 3d 1524 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 27
Littoral Dev. Co. v. San Francisco Bay Conservation
& Dev. Comm’n, 24 Cal. App. 4th 1050 (1994) . . . . . . . . . . . . . . . . . . 35
People v. Moore, 31 Cal. App. 4th 489 (1994) . . . . . . . . . . . . . . . . . . . . . 17
People v. Worst,
57 Cal. App. 2d Supp. 1028 (1943) . . . . . . . . . . . . . . 2, 17-22, 26-27, 37
Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011) . . . . . . . 23
Pitney-Bowes, Inc. v. State, 108 Cal. App. 3d 307 (1980) . . . . . . . 14, 33-34
Roberts v. Farrell, 630 F. Supp. 2d 242 (D. Conn. 2009) . . . . . . . . . . . . . 32
Page
- v -
Santa Ana Unified Sch. Dist. v. Orange County Dev. Agency,
90 Cal. App. 4th 404 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Schneider v. Cal. Coastal Comm’n,
140 Cal. App. 4th 1339 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 33-35
Turner v. State, 850 S.W.2d 210 (Tex. App. 1993) . . . . . . . . . . . . . . . . . . 28
Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748 (1976) . . . . . . . . . . . . . . . . . . . 30
Welton v. City of Los Angeles, 18 Cal. 3d 497 (1976) . . . . . . . . . . . . . . . . 32
United States Constitution
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22, 30-33
California Statutes
1988 Cal. Stat., ch. 161, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Bus. & Prof. Code § 12210(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Evid. Code § 452(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
§ 452(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Food & Agric. Code § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
§ 12753 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§ 12753(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
§ 12993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§ 14533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
§ 14548 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Page
- vi -
California Regulations
Cal. Code regs. tit. 3, § 2304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Cal. Code Regs. tit. 3, § 6145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Cal. Code Regs. tit. 3, § 6145(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Cal. Code Regs. tit. 3, § 6147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Miscellaneous
Brown, Charles R., USDA Agricultural Research Service,
Scientists Use Old, New Tools to Develop Pest-Resistant Potato
(Apr. 2009), available at http://www.ars.usda.gov/is/AR/
archive/apr09/potato0409.htm (last visited May 3, 2011) . . . . . . . . . . . 25
Darwin, Charles, The Formation of Vegetable
Mould Through the Action of Worms (1881) . . . . . . . . . . . . . . . . . . . . . 5
Flint, M. L., Univ. of Cal. Statewide Integrated Pest
Mgmt. Program, Pests in Gardens and Landscapes: Aphids
(May 2000), available at http://www.ipm.ucdavis.edu/PMG/
PESTNOTES/ pn7404.html (last visited May 3, 2011) . . . . . . . . . 23-24
McGraw, Linda, USDA Agricultural Research Service,
New Plants Put a Hurt on Pests (Feb. 18, 1999),
available at http://www.ars.usda.gov/IS/pr/
1999/ 990218.htm (last visited May 3, 2011) . . . . . . . . . . . . . . . . . . . . . 7
Merzendorfer, Hans & Zimoch, Lars,
Chitin Metabolism in Insects: Structure, Function
and Regulation of Chitin Synthases and Chitinases,
206 J. of Experimental Bio. 4393 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 7
Ortho Home Gardener’s Problem Solver (2004) . . . . . . . . . . . . . . . . . . . 24
Page
- vii -
Quiros, Carlos F., Univ. of Cal. Coop. Extension,
Vegetable Research & Information Center,
Development of Fusarium Resistant Celery,
available at http://vric.ucdavis.edu/veg_info/
fusarium celery.htm (last visited May 3, 2011) . . . . . . . . . . . . . . . . . . . 25
9 Witkin, B.E., California Procedure (3d ed. 1985) . . . . . . . . . . . . . . . . . 17
1 See infra at 4.
2 Section 12753 defines pesticide as “[a]ny substance, or mixture of
substances which is intended to be used for defoliating plants, regulating plant
growth, or for preventing, destroying, repelling, or mitigating any pest . . .
which may infest or be detrimental to vegetation, man, animals, or households,
or be present in any agricultural or nonagricultural environment whatsoever.”
Unless otherwise stated, all references to “sections” are to the Food and
Agricultural Code.
3 See infra at 6.
4 See infra at 6.
5 See infra at 6-9.
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INTRODUCTION
The California Department of Pesticide Regulation (DPR) fined small
businessman George Hahn $100,000 for selling a fertilizer or plant food,
called Worm Gold, which is made of worm feces (called worm “castings”).1
Although worm castings are a part of all normal garden soil, the DPR declared
Worm Gold to be a pesticide under Section 12753 of the California Food and
Agricultural Code.2 It did so not because Worm Gold is poisonous—it is not;
indeed, worm castings are not harmful in any way,3 or marketed or represented
as poisons. Worm Gold is not ingested by pests, is not physically injurious to
pests, and does not act directly on pests at all.4 Instead, when ingested by a
plant, it enhances the plant’s natural resistance to pest infestation and only
indirectly causes pests to avoid plants.5 But the DPR concluded, and the trial
court affirmed, that any product, regardless of its nature, is legally deemed a
6 Joint Appendix (JA) 101-05.
7 See infra at 23-26.
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pesticide under Section 12753 whenever anyone makes a “pesticidal claim”
about that product.6 Under this theory, as the DPR conceded below, even
water would qualify as a pesticide if a nursery employee recommended—as
gardeners often do recommend—that a consumer spray plants with water to
repel aphids.7 Such an extreme interpretation of the statute is in error, and
should be reversed.
First, Hahn’s fertilizers are not actually pesticides, because they do not
act on pests, to repel them or in any other way. Worm Gold products only act
on plants, which are thereby strengthened to resist pest infestation. Second,
the decision below conflicts with established precedent, particularly People v.
Worst, 57 Cal. App. 2d Supp. 1028 (1943), a case closely on point which holds
that a natural product that does not actually operate on pests, but only produces
a smell or is otherwise obnoxious to pests, is not a pesticide. Although briefed
extensively below, the trial court did not address Worst at all. Third, the term
“pesticidal claim” does not occur in any California law, and is so vague that
it is impossible to determine what sorts of statements would or would not
transform a product into a pesticide under the superior court’s interpretation
of Section 12753. Fourth, the decision below leads to absurd results, would
sweep in any number of obviously non-pesticidal products, including water,
8 See infra at 37-42.
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or plants genetically engineered to resist pests, or even scarecrows or
flyswatters, simply because someone says that such things can kill or repel
pests. Finally, the trial court’s holding endangers important First Amendment
rights, because it would prohibit Hahn from truthfully describing the qualities
and characteristics of his products. The court should have avoided raising this
constitutional problem.
A more narrow construction of the statute would have avoided raising
constitutional issues, would have construed DPR’s statutory jurisdiction in a
more reasonable way, and would have more logically concluded that only
actual pesticides, or products consistently represented as intended for direct
use on pests (to kill or repel them), are pesticides under the statute. Under this
more reasonable interpretation, the fine should be vacated. Hahn did not
advertise Worm Gold products as pesticides. On the contrary, when Worm
Gold advertisements are read in context, and not in a “cherry-picking,” out-of-
context fashion, it is clear that Hahn consistently advertised these products as
non-pesticides—as plant foods which strengthen the natural ability of plants
to fight off pest infestation.8
9 Unless otherwise stated, George Hahn, California Vermiculture, LLC, and
Tree And Plant Rescue, are collectively referred to herein as “Hahn.”
10 Unless otherwise stated, Worm Gold, Worm Gold Plus!, and Worm Gold
Premium Mix, are referred to hereinafter as “Worm Gold products” or “Worm
Gold brand fertilizers.”
11 Citations to the two-volume Administrative Record are designated as “AR
[Volume Number] : [Page Number].”
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STATEMENT OF FACTS
A. “Worm Gold” Brand Fertilizers
George Hahn is an entrepreneur who owns and operates two companies
called California Vermiculture, LLC, and Tree And Plant Rescue.9 These
companies sell a fertilizer called Worm Gold, and certain derivative fertilizer
products called Worm Gold Plus! and Worm Gold Premium Mix.10
Administrative Record (AR) 2:787.11 Worm Gold Plus! consists of worm
castings added to rock mineral and fossilized kelp, to help increase plant
growth. Worm Gold Premium Mix consists of worm castings, rock minerals,
and a ready-to-use compost mix. Id. Tree And Plant Rescue also made a
product called Tree & Plant Rescue Solution (TPRS), which was not sold to
consumers, but which Tree And Plant Rescue used as part of its service of
restoring the health of trees suffering from beetle infestations. Id. TPRS
consists of Worm Gold Plus!, molasses, compost, and water. Id.
Worm Gold brand fertilizers are soil amendments or “plant foods,”
registered as required with the California Department of Food and Agriculture,
12 Charles Darwin, The Formation of Vegetable Mould Through the Action of
Worms (1881).
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AR 1:477-78, 2:1039-40, and composed of worm castings—the fecal product
of worms. AR 1:787. Worm castings are a natural component of all healthy
soil, which is usually permeated by naturally occurring worms. Gardeners
have long used worm castings as an organic plant food that can help improve
plants’ natural resistance to infestation by insects and other pests.
AR 1:451-54, 1:573-74, 2:842. In the administrative hearing, DPR witness
Dr. Don Koehler testified that worm castings can add nutrients to depleted or
unhealthy soil. AR 2:884-85. He testified that “worm castings would be
beneficial to a soil and to growing plants in it,” AR 2:884, and that although
“if you have a soil that is pretty adequate in structure and function and
nutrition, then the [worm castings] don’t necessarily add anything,” they would
nevertheless be beneficial if they are “contributing something that isn’t already
in the soil.” AR 2:885.
The benefits of worm castings have been widely known to gardeners
since at least the Nineteenth Century, when Charles Darwin wrote a book on
worms and worm castings. AR 1:456,12 AR 2:1032. Earthworms play a vital
role in the breakdown of organic matter and the release of nutrients into soil.
AR 1:456-70, 2:1035. Worm castings (a.k.a. “vermicompost”) promote the
growth of plants, and produce dramatic increases in germination, growth,
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flowering, and crop yield. AR 2:1036. They also help plants to fend off
attacks and pests. AR 1:471-76.
B. How Worm Gold Brand Fertilizers
Make Plants Resistant to Pests
Worm Gold brand fertilizers are not intended to be ingested by pests,
and do not kill insects. AR 2:1049; 2:1147. They do not act directly on pests
at all, either to kill them or to bar them from approaching or lighting on a
plant. Instead, Worm Gold brand fertilizers cause plants to flourish, fostering
their natural resistant properties. Healthy plants are naturally more resistant
to pest attacks. AR 2:988. Worm Gold brand fertilizers are not poisonous to
humans; users are not required to use gloves when handling them, and they are
not dangerous if they get in the eyes. AR 2:1048. They cannot contaminate
vegetables. AR 2:1052.
The specific method by which Worm Gold brand fertilizers work is as
follows. Hahn harvests worm castings from “worm beds,” long tables full of
dirt and worm food, which can be used to sift the worm castings from the
bottom. AR 2:609, 2:614, 1:467-68. Hahn feeds the worms cardboard.
AR 2:1035. The castings are then packaged immediately, or are mixed with
kelp or compost and then packaged for sale. The user applies Worm Gold
products to the soil surrounding a plant, AR 1:787, 2:604-15, 2:1038, 2:1066,
or through “foliar application,” by spraying liquid Worm Gold products on the
leaves, trunk, or stem, to speed up the plant’s ingestion of Worm Gold.
13 Chintinase is an enzyme that degrades chitin, a polymer found in the
exoskeletons of pest insects. AR 2:870. Hans Merzendorfer & Lars Zimoch,
Chitin Metabolism in Insects: Structure, Function and Regulation of Chitin
Synthases and Chitinases, 206 J. of Experimental Bio. 4393, 4393 (2003).
Hahn believes that chitinase can “put[] a ‘chink in the armor’ of the insect’s
stomach by causing chitinous membranes to disintegrate. Without this
membrane, insects are helplessly vulnerable to microbial infections.” Linda
McGraw, USDA Agricultural Research Service, New Plants Put a Hurt on
Pests (Feb. 18, 1999), available at http://www.ars.usda.gov/IS/pr/1999/
990218.htm (last visited May 3, 2011). However, as the DPR noted, this case
does not depend on any factual determination as to the efficacy of Worm Gold
products or whether chitinase works in this way. See AR 2:787 (n.8) (“[T]he
efficacy of Wormgold products was not an issue in this hearing, and whether
or not they work is unnecessary to resolution of this case.”).
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AR 1:787, 2:1038, 2:1067. Once a plant ingests soil enriched by Worm Gold
brand fertilizers, the plants increase their production of naturally occurring
enzymes, in particular chitinase. AR 2:1050, 2:869-71.13
Insects can sense the presence of these enzymes in a plant’s vascular
system, through something akin to the sense of smell, and choose to avoid that
plant. AR 2:1049 (Q: “Do the bugs ingest Wormgold?” Hahn: “No. The
bugs avoid Wormgold. If you put Wormgold down, ants won’t cross it.”
Q: “Do you know whether it actually kills insects?” Hahn: “Have no
instance—there is no relationship that it kills insects. The insects will
avoid—the insects will avoid worm castings.”); AR 2:608 (patent materials
describing the product working through pests’ natural “strong aversion” to
chitinase). Hahn explained the process in a Worm Gold advertisement, “The
bugs’ reaction to chitinase is similar to our reaction to sour milk. One drop of
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sour milk mixed into a glass of sweet milk and you will drink the glass with
no negative reaction. However, mix in three tablespoons and no one has to
convince you to not drink the milk.” AR: 1:368. Or, in a statement released
by Tree And Plant Rescue: “[o]nce the systemic level of chitin degraders is
such that chewing and sucking bugs can detect it, the bugs will avoid the
plants.” AR 1:422. Worm Gold brand fertilizers do not poison pests, starve
them, or prevent them from landing on a plant. Instead, they boost plants’
natural bioresistant mechanisms, which pests can detect, and which they will
avoid. See also AR 2:626 (Advertisement: “tests revealed that chewing and
sucking insects avoid plants that were mulched with worm castings . . . .
[T]his product increases the plant’s natural defensive ability. This product is
NOT a pesticide and no chemicals are used.”).
Plants have evolved to resist pest infestation naturally. But, plants
grown in soil that is organically depleted and/or has few earthworms are less
able to resist infestations. When a gardener adds worm castings to the soil, the
plant absorbs them, which causes the plant to increase its natural enzyme
production, thus helping to make the plant less appetizing to insects. The
natural boost to the plant’s “immune system” caused by worm castings enables
the plant to produce signals that discourage insects from loitering around or
eating the plants. AR 1:128-32 (newspaper article: “Bark beetles and other
pests who sense the presence of chitin will not bore into the trees, Hahn
14 The Administrative Record contains numerous advertisements for Worm
Gold products. See AR 1:94-98; 1:146-47; 1:175-77; 1:190; 1:192; 1:356-87;
1:396; 1:398-401; 1:405-31; 1:435-42; 1:492; 2:616-50; 2:677-78; 2:683-84.
Many of these are duplicates. The Administrative Record also includes many
advertisements from companies not associated in any way with Hahn: Organic
Tree Care and Home Chek Services. Hahn proved, and the hearing officer
found, that Hahn was not responsible for these companies’ actions. AR 2:795.
This Court must therefore disregard any evidence related to, or advertisements
published by, Organic Tree Care and Home Chek Services.
The Superior Court did not specify which advertisements it considered
violations, but cited “the evidence in the record” generally. JA at 104. The
Administrative Hearing Officer identified quoted material he considered to be
in violation. See AR 2:789-90, 2:792-93. Those advertisements appear at
(continued...)
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discovered.”); AR 2:604-15 (patents describing how Worm Gold brand
fertilizers work); AR: 2:471-76 (articles describing insects’ aversion to
vermicomposts).
Worm Gold brand fertilizers are not used on pests, and do not affect
pests in any direct way. Instead, they are natural fertilizers that promote plant
robustness, making plants more resistant to infestation. Because worm
castings are non-toxic, they provide a non-poisonous alternative to chemical
pest treatments and do not harm other valuable organisms in the soil.
C. Worm Gold Sales and Advertising
Beginning in 1998, Hahn sold Worm Gold products to nurseries,
AR 2:1053, and applied Tree and Plant Rescue Solution to trees as a service,
and advertised the products and services with advertisements that touted Worm
Gold products’ ability to foster plants’ natural pest resistance.14 These
14 (...continued)
AR 1:97; 1:114; 1:362; 1:367; 2:638. He also found that a store display that
included a handwritten sign describing Worm Gold as a “slug killer” was a
violation, even while acknowledging that “the sign was created in the store,
and not by [Hahn],” who had no control over any such sign. AR 2:790 n.12.
- 10 -
advertisements promoted Worm Gold brand fertilizers’ capacity to make plants
healthy and strong, and truthfully stated that insects would choose to leave or
would avoid treated plants. One advertisement, for example, noted that “worm
castings improve health of plants when used with a quality compost,”
AR 1:371; another touted Worm Gold as “The Ultimate Soil Amendment,”
noting that “aphids, spider mites, white flies, bark beetles, and other pest
insects have left plants when they were fed WORMGOLD,” AR 1:634;
another noted that “[b]ark beetles will avoid and not attack trees when the root
zone bark and needles have been treated with the proper beneficial
microorganisms.” AR 1:97. Still another noted that “[b]eetles will avoid
conifers . . . that have been treated with Tree and Plant Solution.” AR 1:420.
Still another emphasized “Improved Growth With Worm Castings.”
AR 1:373.
Hahn did not advertise Worm Gold brand fertilizers with the word
“pesticide,” or claim that they killed pests. See, e.g., AR 2:1055, 2:1063,
2:1147. Instead, advertisements explained that “[t]his product is NOT a
pesticide.” AR 1:492; AR 1:363 (“[I]t’s not a nasty pesticide . . . [or] a
fungicide but those soil problems are gone.”); see also AR 1:115 (contrasting
- 11 -
Worm Gold products with pesticides and describing them as “dramatically
different” than pesticides).
On some occasions before government officials informed Mr. Hahn that
such advertising statements were not allowed, advertisements for Worm Gold
brand fertilizers did include statements that, taken out of context, implied that
Worm Gold brand fertilizers themselves repel pests. Yet these advertisements
also made clear that repellency effects resulted from the nourishing of the
plant, and not from direct effects on the pests. For example, one
advertisement stated: “Repels Bark Beetles Naturally,” AR 1:94, but went on
to explain that pest repellency would follow only as an indirect consequence
of Worm Gold’s action as a fertilizer—e.g., that the products “reintroduce
beneficial microorganisms to your trees that were lost under adverse conditions
such as drought,” and thereby “Revitalize[s] the Health of Trees.” Id. Another
stated that Worm Gold products “fight[]diseases & problems for food &
space,” and “Prevent[] further growth of pathogens or infection,” and had
“disease suppressive effects.” AR: 2:628-29. Yet the same advertisement
made clear that the product was intended to “stimulate new growth and revive
plant health,” to serve as a “source for renewable nitrogen,” to “help[] retain
soil moisture.” Id. In other words, when read in context, the advertisements
stated that Worm Gold products, by feeding and strengthening a plant, can help
it to resist infestation; the products were not advertised as pesticides.
- 12 -
Taken in context and read as a whole, the advertisements stated that
Worm Gold brand fertilizers are to be used to improve plant health and thereby
strengthen the plants’ natural resiliency against attacks—not to kill or repel
pests on their own. One client testimonial, for example, noted that “our vines
treated with WORMGOLD and WORMGOLD Premium Mix have thicker,
greener leaves, with more terminal bud growth and positive vigorous cane
growth. The overall health of the vines are showing less stress . . . .
[S]tress[ed] plants are turning around and starting to show more robustness.”
AR 2:645.
D. DPR’s Investigations and Citations of Hahn
In the fall of 2004, the DPR and the Agriculture Commissioners of
San Bernardino and Riverside Counties initiated investigations of Mr. Hahn
and his companies. AR 1:133, 1:178-88. These investigations resulted from
publicity about Hahn’s treatment of beetle-infested trees in the San Bernardino
National Forest, and from advertisements on Mr. Hahn’s websites.
AR 1:189-92, 1:388. Ultimately, Hahn was fined by the Riverside County
Agriculture Commissioner (CAC), AR 1:178, although not by the
San Bernardino CAC, which, after explaining state pesticide regulations to
Mr. Hahn, rescinded its notice of violation. AR 2:1073, 2:1111. Hahn
requested a hearing regarding the Riverside fine, and the fine was upheld by
the Riverside CAC, who noted that Hahn “made every effort to comply with
- 13 -
Federal, State and local law” and “made substantial proactive efforts to get
information so that he could be in full compliance with all laws and
regulations. There were several different government agencies involved in this
information gathering process, giving seemingly contradictory and/or
incomplete information.” AR 1:187, 2:1111. Finding no evidence that Worm
Gold brand fertilizers were harmful to humans, the Riverside CAC reduced the
fine. AR 1:188. On appeal, the DPR affirmed the Riverside CAC’s finding
that Mr. Hahn had violated the statutes and increased the fine to $500, on the
basis that the fact that these products are not harmful to humans was irrelevant.
AR 2:668. The Director did not disturb the finding that Mr. Hahn acted in
good faith. Mr. Hahn paid the fine on March 13, 2006.
On April 18, 2007, the DPR initiated a new proceeding against
Mr. Hahn, this time on the grounds that he had sold unregistered pesticides.
AR 1:7. After various procedural delays, and after denying motions to
dismiss, DPR convened a hearing for May 13 and 14, 2009. The Hearing
Officer took evidence and testimony, and on September 23, 2009, the DPR
held Hahn liable for the sale of an unregistered pesticide, and fined him
$100,000. AR 2:785-805. Appellants sought a writ of mandate to reverse the
DPR’s decision, JA at Tab 1, which was denied on August 16, 2010. JA at
Tab 10. This timely appeal followed.
- 14 -
QUESTION PRESENTED
AND STANDARD OF REVIEW
Section 12993 prohibits the sale of “pesticides” that are not registered
with the DPR. The question here is whether Hahn’s natural, non-poisonous
plant food products are “pesticides” within the meaning of that section, and
thus whether the DPR has statutory jurisdiction. Reviewing courts apply
de novo review to the question of whether an administrative agency proceeded
in excess of its jurisdiction. Schneider v. Cal. Coastal Comm’n, 140 Cal. App.
4th 1339, 1343-44 (2006). Courts should avoid construing administrative
authority in a manner that “add[s] language” to the statute that gives the
agency jurisdiction. Id. at 1345; accord, Pitney-Bowes, Inc. v. State, 108 Cal.
App. 3d 307, 321 n.12 (1980) (“[A]bsent a clear legislative mandate, in the
interest of the wise public policy of avoiding uncalled for and unnecessary
regulation in the free market place, courts should exercise judicial restraint and
refrain from scratching administrative agencies’ itch to expand their regulatory
powers.”).
Courts should “examine the words of the statute itself, attributing the
usual, ordinary, and common sense meaning to them.” Santa Ana Unified Sch.
Dist. v. Orange County Dev. Agency, 90 Cal. App. 4th 404, 409 (2001).
Individual words and phrases in a statute must not be read in isolation, or read
so as to “extend” a word “to the outer limits of its definitional possibilities.”
Abuelhawa v. United States, 129 S. Ct. 2102, 2103 (2009) (citation omitted).
- 15 -
Courts are not bound by a “literal interpretation” that “would result in absurd
consequences the Legislature did not intend.” Coal. of Concerned
Communities, Inc. v. City of Los Angeles, 34 Cal. 4th 733, 737 (2004).
Context matters, because if statutory language is open to more than one
reasonable interpretation, courts may consider other aids, including the
statute’s purpose, legislative history, and public policy. Id.
ARGUMENT
I
THE SUPERIOR COURT ERRED IN HOLDING
THAT ANY PRODUCT OF WHATEVER
NATURE IS A “PESTICIDE” IF IT IS EVER
DESCRIBED AS CAUSING PEST AVOIDANCE
A. Worm Gold Products Are Not Actually Pesticides
Food and Agricultural Code section 12993 makes it illegal to sell a
pesticide or a product represented to be a pesticide, without first registering it
with the DPR. The term “pesticide” is defined in Section 12753 as:
(a) Any spray adjuvant.
(b) Any substance, or mixture of substances which is intended
to be used for defoliating plants, regulating plant growth, or for
preventing, destroying, repelling, or mitigating any pest . . .
which may infest or be detrimental to vegetation, man, animals,
or households, or be present in any agricultural or
nonagricultural environment whatsoever.
Worm Gold brand fertilizers are not pesticides, and the DPR therefore lacks
jurisdiction. Worm Gold brand fertilizers do not defoliate plants or regulate
- 16 -
plant growth, and are not intended to be used to prevent, destroy, repel, or
mitigate pests. Instead, they are intended to be ingested by plants, in order to
cause plants naturally to become strong and to resist pests through their natural
bioresistance capacities. While in this sense Worm Gold products indirectly
cause plants to ward off attacks by pests, so, too, do water, sunlight, and other
nutritive components of garden soil. Worm Gold products themselves are
simply not intended for use in any of the ways described by Section 12753.
They do not repel pests; they cause plants to repel pests through their own
natural resistant qualities. See further AR 2:1148 (Q: “Does [Worm Gold],
in fact, cause plants to repel insects?” Hahn: “Absolutely. Very efficiently.”).
Worm Gold products are therefore not actually pesticides.
B. A Product That Repels Pests Only Indirectly Through a
Plant’s Natural Bioresistant Processes Is Not a Pesticide
The fact that a plant food, when properly used, causes a plant to
undergo a natural process that makes it resistant to pests, does not make that
plant food a pesticide. On the contrary, the language of Section 12753(b)
contemplates substances which are directly applied to, or ingested by, pests.
It refers to a “substance, or mixture of substances which is intended to be used
for . . . preventing, destroying, repelling, or mitigating any pest.” (Emphasis
added.) Worm Gold is not intended to be used for repelling pests; it is
intended to be used for improving plant health and thereby encouraging the
plant’s normal resistance to pests. The language of Section 12753 does not
15 Worst was a decision of the superior court appellate division. Thus
although it was not directly controlling on the court below, “‘the persuasive
value of such opinions has been constantly recognized.’” People v. Moore,
31 Cal. App. 4th 489, 492 n.2 (1994) (quoting 9 B.E. Witkin, California
Procedure 747-48 (3d ed. 1985)).
- 17 -
apply to a plant food which causes pest repellency only as a secondary or
indirect consequence of nourishment.
In Worst, 57 Cal. App. 2d Supp. 1028, the court15 determined that plants
that deter gophers (“gopher purge”) are not pesticides and that the DPR
therefore had no power to regulate them. These plants were not pesticides
because they were “never represented as being a poison, or as being physically
injurious to the gopher, or to be eaten by him, but only as being so obnoxious
to his sense of smell as to discourage his presence in the immediate vicinity.”
Id. at 1031. The court concluded that the Department of Agriculture had no
statutory authority to require registration of natural products of which the
“active ingredient . . . is produced by nature and not by chemicals or other
artificial means.” Id. at 1030-31. The legal definition of pesticide “was never
intended to, and does not, include a growing bush of the character here under
consideration.” Id. at 1030. The plant was not an “economic poison,” id.
at 1029, and did not become one simply because it was sold with
advertisements touting its capacity to repel pests.
This case is similar to Worst in every relevant respect. Worm Gold
brand fertilizers are composed of naturally occurring products formed by
- 18 -
worms in soil. They are not artificial chemicals or economic poisons. The
DPR did not allege that Hahn represented Worm Gold brand fertilizers as
poisons, or as being physically injurious to any pest or as intended for
ingestion by pests. Cf. Worst, 57 Cal. App. 2d Supp. at 1031. Hahn advertised
these products only as being so obnoxious to pests as to discourage their
presence in the vicinity. Thus, as with the natural odor of the plant in Worst,
Worm Gold brand fertilizers simply discourage the presence of pests in the
vicinity where the products are applied. They do not qualify as “pesticides”
or “economic poisons.”
It makes no difference that Hahn’s worms are fed cardboard. Although
the DPR relied heavily on this fact to distinguish Worst, see AR 2:798-99, the
court in Worst actually addressed this same consideration and found it
irrelevant. There, the government contended that gopher purge was not wholly
natural because its gopher-repelling smell was enhanced by feeding the plant
vitamins, and that the plant was therefore a pesticide. See 57 Cal. App. 2d
Supp. at 1031. The court rejected this argument as, again, too expansive.
Herbicides, it noted, are included in the definition of pesticides, so such an
argument would mean that weed-preventative grasses would also qualify as
“pesticides” and require DPR registration:
If this is true, as “weeds” are listed along with “rodents” in
section 1061, one could not, without first complying with
section 1071, grow a lawn clover, with the aid of a fertilizer, and
sell it under the representation that it is more rugged than devil’s
- 19 -
grass and will prevent the growth of the latter when planted in
a lawn. We cannot agree that this law was ever intended to be,
or is, so inclusive.
Id. In short, natural products that merely deter pests indirectly by producing
a smell or taste that pests find obnoxious—be it gopher purge or Worm Gold
brand fertilizers—are not pesticides, even if the smell is enhanced by the
addition of nutrients.
The Worst case was reaffirmed in Leslie’s Pool Mart, Inc. v. Dep’t of
Food & Agric., 223 Cal. App. 3d 1524, 1534 (1990), which described Worst
as a case in which the Department “overstepped its statutory authority.”
Leslie’s Pool Mart noted that when the Legislature amended Section 12753
after Worst, it chose not to change that case’s interpretation of the statute; the
amendment was merely “‘declaratory of existing law and [did] not constitute
a change in the law.’” Leslie’s Pool Mart, 223 Cal. App. 3d at 1538 n.12
(citing 1988 Cal. Stat., ch. 161, § 4). The Legislature’s acquiescence in the
Worst decision reinforces Hahn’s position in this case. In Cel-Tech
Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 178 (1999),
the supreme court noted that although “[l]egislative inaction is often not a
convincing reason to refuse to change a statutory interpretation,” it was
sufficient where the judicial interpretation in question had stood unchanged
“for almost half a century,” was unambiguous, and where the Legislature had
amended other portions of the statute. These factors are all present here. The
- 20 -
DPR regarded Worst as outdated, but the longevity of that decision, and the
Legislature’s choice not to disturb it, imply that the Legislature was aware of
the precedent holding that purely natural products are not pesticides and
therefore not subject to the registration requirement in Section 12753, and
chose not to disturb that precedent.
Hahn’s argument is also buttressed by the administrative regulations
interpreting the statute. Title 3, section 6147, of the California Code of
Regulations provides a list of exemptions to the registration requirement; that
list includes only natural products which are used directly to repel pests, such
as garlic or cinnamon. It does not include any products which, like Worm
Gold fertilizers, are only used to encourage plant health, and only indirectly
prevent pest infestation. Title 3, section 2304, of the Code of Regulations, by
contrast, is a regulation governing fertilizers, not pesticides, and it does
explicitly contemplate fertilizers or plant foods that have secondary effects like
those caused by Worm Gold. That regulation states: “All fertilizing materials
for which claims are made relating to organisms, enzymes [e.g., chitinase] or
organisms by-products are auxiliary soil and plant substances.” Because the
relevant statutes and regulations should be read as a whole wherever possible,
these regulations support Hahns’ interpretation: Plant foods that encourage
16 Worm Gold brand fertilizers do fall within the statutory definition of
“fertilizer” in Food and Agriculture Code section 14533 (“any commercial
fertilizer, agricultural mineral, auxiliary soil and plant substance, . . . or
packaged soil amendment”) and “natural organic fertilizer” in Section 14548
(“[M]aterials derived from . . . animal products containing one or more
nutrients other than carbon, hydrogen, and oxygen, which are essential for
plant growth, which may be subjected to biological degradation processes
under normal conditions of aging, rainfall, sun-curing, air drying, composting,
rotting, enzymatic, or anaerobic/aerobic bacterial action.”).
- 21 -
plants’ natural strength against pest attacks should be regarded as fertilizers,
not as pesticides.16
Under Worst, a natural product that deters pests only in an indirect
manner—that does not act on pests and is not ingested by pests, but merely
produces an odor or otherwise causes pests to avoid an area—is not a
pesticide, even if it is advertised as ultimately causing pests to leave a plant or
an area. Like the plant that gophers chose to avoid in that case, Worm Gold
brand fertilizers are merely natural substances that have indirect, pest-deterring
effects, and are therefore not pesticides. The fact that their pest-deterring
effects are truthfully advertised does not convert these products into pesticides
under the statute. Since only pesticides or products represented to be
pesticides are subject to the registration requirement in Section 12753, Worm
Gold products are not prohibited by the statute and the DPR’s fine should be
vacated.
- 22 -
II
THE SUPERIOR COURT
ERRED IN HOLDING THAT A
NON-PESTICIDE PRODUCT BECOMES
A PESTICIDE IF A PERSON MAKES A
“PESTICIDAL CLAIM” THAT THE PRODUCT
INDIRECTLY CAUSES PEST REPELLENCY
The superior court appeared to acknowledge that Worm Gold products
are not actually pesticides, but held that as a matter of law a product is deemed
a pesticide, regardless of its actual nature, whenever a person makes a
“pesticidal claim” about that product, meaning a claim that might “reasonably
would lead consumers to believe that the products can and should be used to
repel insects and control plant fungus.” JA at 104.
Such an interpretation cannot withstand scrutiny. First, it leads to
absurd results, making any product—even water or “gopher purge”—into a
pesticide whenever a person says that the product can be used, even indirectly,
to keep pests away from plants. Indeed, the decision below is directly contrary
to Worst, which although extensively briefed below, the superior court never
cited or addressed in its decision. Second, the term “pesticidal claim” is vague
and undefined, making it impossible for businesses to know what information
they may and may not legally disseminate about their products. Finally, a
blanket prohibition against making “pesticidal claims” about legal products
would violate the First Amendment, which guarantees a business’ right to
make truthful and non-misleading statements about its products. Because
17 See M. L. Flint, Univ. of Cal. Statewide Integrated Pest Mgmt. Program,
Pests in Gardens and Landscapes: Aphids (May 2000), available at
http://www.ipm.ucdavis.edu/PMG/PESTNOTES/pn7404.html (last visited
May 3, 2011). Appellants request that this Court take judicial notice that this
publication recommends the use of water to repel or eliminate pest
infestations.
- 23 -
courts should avoid interpretations of statutes that threaten constitutional
rights, the trial court should have construed the statute narrowly. Making a
“pesticidal claim” about a product is not sufficient to make that product a
pesticide if it is not used directly on pests to kill or repel them.
A. The Decision Below Leads to Absurd Results
When possible, a statute should be interpreted to avoid anomalous or
absurd results. Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524, 533
(2011); Foxgate Homeowners’ Ass’n v. Bramalea California, Inc., 26 Cal. 4th
1, 14 (2001). But construing Sections 12753 and 12993 to deem any product,
regardless of its actual nature, to be a pesticide whenever a person makes a
“pesticidal claim” about that product would have absurd results. It would
transform even obvious non-pesticides, such as water or “gopher purge,” into
“pesticides” under the statute. The DPR’s witnesses admitted that under the
broad interpretation of “pesticide” used here, water—which professional
gardeners recommend using to eradicate pests such as whiteflies or
thrips17—would qualify as a pesticide. AR 2:889 (Q: “If water was sold and
it was sold on the basis it kills or repels insects, is it your opinion that it would
18 Flint, supra.
- 24 -
be registered?” Dr. Koehler: “A direct answer to that specific question would
be yes.”); AR 2:988 (Mr. Dearmin: “If they’re marketing [water] as a
pesticide, we would pursue it.”). Indeed, water is more like a pesticide than
is Worm Gold, because water acts directly on pests, whereas Worm Gold
products do not; they only act on plants, causing the plants to become
unattractive to pests.
Indeed, under the superior court’s interpretation, any product that might
have an indirect effect on a pest would qualify as a pesticide and be subject to
the statutory registration requirement, including all fertilizers or plant foods,
since they also cause plants to flourish and thereby deter pests. Not only
would tap water, barbed wire, or scarecrows qualify as pesticides, but so would
other obvious non-pesticides. U.C. Davis recommends using Teflon or duct
tape to prevent aphids from infesting plants.18 Gardeners often paint tree
trunks to prevent insects from boring into them, see Ortho Home Gardener’s
Problem Solver 271 (2004), or wrap tree trunks with strips of metal to prevent
squirrels from climbing them. Id. at 496. Under the DPR’s expansive
interpretation of Section 12753, duct tape, paint, metal strips, and Teflon
would qualify as “pesticides” if any nursery employee tells a customer that
19 Neither Section 12993 nor Cal. Code Regs. tit. 3, § 6145(a) distinguishes
between retailers and wholesalers; it thus appears that even if a manufacturer
makes no “pesticidal claims” about a product, a comment by an employee at
a retail store would qualify as a “pesticidal claim” and subject the wholesaler
and/or retailer to liability. Indeed, the Hearing Officer based his finding that
Hahn had violated the statute in part on a statement by an employee at a retail
nursery, over whom Hahn had no control. AR 2:790 n.12 (relying on a hand-
written sign in a retail nursery that inaccurately described Worm Gold as a
“slug killer” while simultaneously recognizing that “the sign was created in the
store, and not by [Hahn].” AR 2:790 n.12.).
20 See Carlos F. Quiros, Univ. of Cal. Coop. Extension, Vegetable Research &
Information Center, Development of Fusarium Resistant Celery, available at
http://vric.ucdavis.edu/veg_info/fusariumcelery.htm (last visited May 3, 2011);
Charles R. Brown, USDA Agricultural Research Service, Scientists Use Old,
New Tools to Develop Pest-Resistant Potato (Apr. 2009), available at
http://www.ars.usda.gov/is/AR/archive/apr09/potato0409.htm (last visited
May 3, 2011). Appellants request that this Court take judicial notice, pursuant
to Evidence Code sections 452(g) and (h), of the fact that these organizations
have announced that they are breeding pest-resistant forms of these plants.
- 25 -
they can be used to prevent pest infestation.19 U.C. Davis is currently breeding
fusarium-resistant celery, and the USDA’s Agricultural Research Service is
developing a potato that is bioresistant to the Columbia Root-knot
Nematatode.20 If a product is deemed a pesticide whenever a “pesticidal
claim” is made about it, these genetically modified plants would also be
subject to the registration requirement. Indeed, in addition to admitting that
water would qualify as a pesticide under the DPR’s interpretation of the
statute, one DPR official testified below that under his interpretation, plants
bred to resist pests would also have to be registered as pesticides. AR 2:871
(“[T]here have been attempts to genetically engineer plants with an insect
- 26 -
chitinase which went in to protect the plant.” Q: “Now if you’re modifying
a product so that it would have this chitinase activity, would that need to be
registered as a pesticide?” A: “Well, if that product is being used to mitigate
or repel pests, yes, it would be a—it would require pesticide registration.”).
If Worm Gold brand fertilizers are subject to DPR control, then all
fertilizers or other products which foster plant strength and plants’ normal
resistance to pests, or which are advertised as indirectly causing plants to fight
off infestation, would also be subject to the registration requirement. This
cannot be the proper interpretation of the statute. Worm Gold brand fertilizers
are natural plant foods, made of substances found in all normal garden soil,
and are marketed for their ability to promote plants’ robustness and capacity
to resist infestation. Truthfully saying that a fertilizer can boost a plant’s
resiliency against pests cannot transform it into a pesticide for purposes of
Section 12753. To hold otherwise would conflict with Worst and “would
result in absurd consequences the Legislature did not intend.” Coal. of
Concerned Communities, Inc., 34 Cal. 4th at 737.
B. The Decision Below Is Contrary to Precedent
As noted above, Worst, 57 Cal. App. 2d Supp. at 1031, explicitly
rejected the expansive interpretation of “pesticide” that the superior court
adopted. Yet although Worst is directly on point, and was briefed extensively
below, the superior court failed to cite or address that decision in any way.
- 27 -
Worst was correctly decided, and the same holding should apply to this case.
There is no reason to believe that Section 12753 was intended to prohibit
naturally occurring products that simply cause plants to produce a
pest-deterring odor—let alone products that are already a natural ingredient of
the soil.
The purpose of California’s pesticide regulations is to “promot[e] and
protect[] the agricultural industry of the state and . . . protect[] . . . the public
health, safety, and welfare.” Food & Agric. Code § 3. These purposes are not
accomplished by defining as a pesticide a product whose active ingredient is
“an odor, and is produced by nature and not by chemicals or other artificial
means,” and which “was never represented as being a poison, or as being
physically injurious to the [pest], or to be eaten by him, but only as being so
obnoxious to [him] . . . as to discourage his presence in the immediate
vicinity.” Worst, 57 Cal. App. 2d Supp. at 1031.
Unlike gopher purge or worm castings, the products at issue in Leslie’s
Pool Mart were pesticides because they are artificial chemicals, 223 Cal. App.
3d at 1530, which were “intended to be used to kill or reduce bacteria or weeds
(algae) in swimming pools.” Id. at 1537. The products were specifically
marketed as a way of killing bacteria. This distinguishes Leslie’s Pool Mart
from Worst and from this case. Here, as in Worst, the products are entirely
natural and sold merely as an indirect way of causing pests to avoid an area.
21 The Texas law’s definition of “pesticide” was virtually identical to
California’s in this case. Id. at 214.
- 28 -
Worm Gold brand fertilizers also differ from the anti-fire ant product at issue
in the Texas case of Turner v. State, 850 S.W.2d 210 (Tex. App. 1993). There,
the court of appeals found that the product qualified as a pesticide21 because
it “immobilize[d] the ants for a while so that they cannot eat.” Id. at 213. The
producer argued that the product’s purpose was only to level ant mounts, but
the court concluded that it “kills the fire ants by preventing them from eating
and this reaches the same end result as any other pesticide.” Id. at 213. But
Worm Gold products do not kill insects, or immobilize them, or prevent them
from eating; it simply boosts a plant’s natural capacity to “smell bad” (so to
speak) to pests.
The superior court’s conclusion that a product that has no direct effect
on pests at all qualifies as a pesticide whenever pesticidal claims are made
about it is contrary to precedent and would dramatically expand DPR
jurisdiction to cover any product that has any ultimate deterrent effect on pests.
This is not what the state’s pesticide regulations were intended to accomplish.
C. “Pesticidal Claim” Is Not an Element of Any Statute
or Regulation and Is an Undefined and Vague Term
The trial court held that any product, whatever its nature, is legally
deemed a pesticide whenever a “pesticidal claim” is made about it. The term
“pesticidal claim,” however, does not appear in any statute, regulation, or case
- 29 -
law in California. Nor does Section 12753 define “pesticide” as anything
about which a “pesticidal claim” is made. Rather, it defines a pesticide as a
substance or mixture of substances which is “intended to be used for
defoliating plants, regulating plant growth, or for preventing, destroying,
repelling, or mitigating any pest,” and Section 12993 makes it illegal to
“manufacture, deliver, or sell any pesticide or any substance or mixture of
substances that is represented to be a pesticide” without first registering that
product with the DPR.
It would stretch the statutory language to an extreme to hold that a
“pesticidal claim” is the same as a “representation” of a pesticide. It is
unclear, for example, whether or not the following would qualify as “pesticidal
claims”:
• “This grass grows so thick, you won’t get a lot of weeds.”
• “Use water to spray aphids off of roses.”
• “If you plant these thorn bushes on your property line, the
neighbor’s dogs will stay out of your yard.”
• “This dog food will make your dog strong and healthy, and a
strong and healthy dog is better able to keep squirrels and other rodents away
from your fruit trees.”
All of these statements might be “pesticidal claims,” in that they state
or imply that a product can, directly or indirectly, result in pest repellency. But
22 Appellants raised this constitutional issue in the court below, but the court
did not address it. See JA at 47-48. The DPR claimed that Appellants had
waived any constitutional challenge to Sections 12753 or 12993 by failing to
raise such a challenge in the administrative process. JA at 13. But Appellants
are not raising a constitutional challenge to the statute; theirs is a statutory
interpretation argument: specifically, that a narrow construction of the statute
is required to avoid intruding on constitutional rights. Constitutional
arguments like this need not be raised before an administrative agency to be
preserved.
- 30 -
to interpret the statute so broadly as to declare that grass or thorn bushes or dog
food or water qualify as pesticides, simply because a salesperson states that
they can, directly or indirectly, deter or repel pests, would be to stretch the
statutory language to an unreasonable extreme. A more reasonable
interpretation of Section 12993 would be to hold that a product is “represented
to be a pesticide” when it is marketed on the understanding that the product
would directly kill or repel pests of its own accord—not when it is marketed
as having indirect or secondary effects that include pest deterrence.
D. The Superior Court’s Expansive Interpretation of the
Statute Threatens Important First Amendment Rights
The decision below construes Sections 12993 and 12753 in a way that
prohibits businesses from making truthful claims about their products—a
violation of the First Amendment.22 Businesses have the right to communicate
truthful, nonmisleading messages about their products. Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770
(1976). Indeed, the First Amendment protects the right of a business to
- 31 -
disseminate truthful information about the “off-label” uses of a product—that
is, uses for which required scientific certifications have not been obtained. In
re Actimmune Mktg. Litig., 614 F. Supp. 2d 1037, 1051 n.6 (N.D. Cal. 2009).
But under the rationale adopted by the superior court, a business violates the
law whenever it truthfully and non-misleadingly states that its fertilizer,
although not a pesticide, has effects that include pest deterrence.
This is not a situation in which the government merely requires
approval and certification before a business may use a specialized term to
describe a product or service. Those cases are also problematic under the First
Amendment, see, e.g., Byrum v. Landreth, 566 F.3d 442, 447 (5th Cir. 2009)
(state could not bar interior designers from truthfully describing themselves as
“interior designers”), but the superior court’s decision goes even further.
According to its decision, Hahn would violate the law any time he makes a
truthful, non-misleading statement such as “this product can help keep your
plants free from bugs.” Indeed, under the theory adopted below, the law
would forbid even such an obviously absurd statement as “you can use this
automobile to run over insects and keep them away from your plants” because
such a “pesticidal claim” would make the automobile into an unregistered
pesticide. Such an interpretation of Sections 12993 and 12753 is not only
absurdly extreme, but so broad as to proscribe the publication or utterance of
an indefinite number of truthful statements about Worm Gold’s qualities.
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It is no answer to say that the statute renders “pesticidal claims” illegal
and therefore removes Hahn’s speech from the protection of the commercial
speech doctrine. As the court said in Byrum, when rejecting a similar
contention,
[t]he State advances a circular argument that the speech
inherently tends to mislead consumers. It runs: Texas created
a licensing regime; therefore, unlicensed interior designers who
refer to themselves as interior designers will confuse consumers
who will expect them to be licensed . . . . This argument also
proves too much, as it would authorize legislatures to license
speech and reduce its constitutional protection by means of the
licensing alone.
566 F.3d at 447. Accord, Roberts v. Farrell, 630 F. Supp. 2d 242, 249 (D.
Conn. 2009) (Businesses have a First Amendment right “to describe
themselves and their work by use of words that . . . accurately describe the
professional services that [they] lawfully render to consumers in the State.”).
The superior court’s expansive use of the definition of “pesticide” as
including any substance which is promoted as deterring pests, or causing plants
to resist pests, thus threatens important constitutional freedoms.
Courts should, whenever possible, interpret statutes to avoid
constitutional problems. Canon v. Justice Court, 61 Cal. 2d 446, 452 n.5
(1964) (“A statute [that may] imping[e] on the right of free speech should be
construed no more broadly than is absolutely necessary to accomplish its
purposes.”); accord, Welton v. City of Los Angeles, 18 Cal. 3d 497, 505-06
(1976) (“[A] statute or ordinance suffering overbreadth may be construed so
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as to avoid conflict with the Constitution . . . [and] limit its effect and
operation to matters that may be constitutionally regulated or prohibited . . .
[and] not create uncertainty inhibiting exercise of a constitutional right.”). It
was not necessary for the superior court to adopt the interpretation that any
statement indicating pest repellency transforms a fertilizer into a pesticide and
thus requires registration and government licensing. Sections 12993 and
12753 are not facially unconstitutional, of course, but those statutes should be
construed with reasonable narrowness to avoid infringing on the protected
right of businesses to disseminate truthful information about their products.
Thus the decision below is erroneous and must be reversed to avoid violating
First Amendment rights.
E. DPR Should Not Be Allowed to Expand
Its Authority Through an Extreme and
Unreasonable Interpretation of the Statute
This Court should not allow the DPR to stretch its authority to such an
extreme. “[A]bsent a clear legislative mandate, in the interest of the wise
public policy of avoiding uncalled for and unnecessary regulation in the free
market place, courts should exercise judicial restraint and refrain from
scratching administrative agencies’ itch to expand their regulatory powers.”
Pitney-Bowes, 108 Cal. App. 3d at 321 n.12.
In Schneider, the court of appeal rejected the Coastal Commission’s
assertion that its statutory authority to regulate property to protect the view “to
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and along” the shoreline also gave it power to regulate property that might be
seen from a boat at sea. The court explained that while as a matter of
grammar, the “view to” the shoreline might be literally read in that way, “it is
unreasonable to assume that the Legislature meant to include ocean-based
views to the shore when it enacted [the Coastal Act] 30 years ago.” 140 Cal.
App. 4th at 1345. The court noted that the authority of administrative agencies
should not be expanded without justification, id. at 1348, and concluded that
there was no statutory warrant for such an expansive interpretation of the
agency’s power.
So, too, in Pitney-Bowes, the Department of Food and Agriculture
asserted administrative authority over postal scales which were used for
determining the cost of postage. 108 Cal. App. 3d at 310. The Department
argued that it had statutory authority over “all scales of any kind,” Bus. & Prof.
Code § 12210(a), including postage scales. The court of appeal, however,
rejected this interpretation as “shak[y].” 108 Cal. App. 3d at 319. Although
the statute, read literally, might have granted the Department such power, the
statute had to be read in context to effect the Legislature’s reasonable intent,
and to avoid overstretching its language. Id. at 313-14.
Likewise, here, Sections 12993 and 12753 should be read in context,
and reasonably—not with an extreme literalism that would sweep in non-
23 Title 3, section 6145, of the California Code of Regulations does say that
a product is a pesticide if a person states or implies that the product should be
used as a pesticide, but that regulation cannot be construed as meaning that
merely saying that a fertilizer can make plants unattractive to pests converts
that fertilizer into a pesticide. Such an interpretation would mean that the
regulation was an attempt to expand DPR authority beyond the statutory
boundaries. An administrative agency cannot expand its statutory authority by
regulation. See Littoral Dev. Co. v. San Francisco Bay Conservation & Dev.
Comm’n, 24 Cal. App. 4th 1050, 1058 (1994) (“we are not bound by the
agency’s own interpretation of its jurisdiction as specified by legislation, since
‘. . . the courts are the ultimate arbiters of the construction of a statute’ . . . .
‘Administrative regulations that alter or amend the statute or enlarge or impair
its scope are void and courts not only may, but it is their obligation to strike
down such regulations.’” (citations omitted)); Schneider, 140 Cal. App. 4th
at 1343-44 (administrative agencies cannot expand their jurisdiction by
redefining statutory terms in regulations). Nor did Hahn’s advertisements state
that Worm Gold products should be used as pesticides. They stated that Worm
Gold products should be used as fertilizers.
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pesticides, or products about which “pesticidal claims” are made.23 The better
reading of those statutes is that a product is “represented” as a pesticide, and
thus within DPR jurisdiction, only where it is labeled or marketed as being for
direct use in preventing, destroying, or repelling pests. Worm Gold products
were not advertised in this way. Taken in context, the Worm Gold
advertisements made clear that the products worked only indirectly, by
boosting a plant’s ability to fight off pest infestations. Only by “cherry
picking” out-of-context words and phrases from the advertisements at issue
can the DPR contend that Hahn represented Worm Gold as “intended to be
used for . . . preventing, destroying, repelling, or mitigating any pest.” See
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infra, Section III. But even these out-of-context statements only declared that
Worm Gold would indirectly cause pests to avoid a plant.
Hahn does not, of course, contend that Worm Gold products should not
be subject to any licensing requirements; they are certainly subject to the
licensing and registration requirements applicable to fertilizers, and are already
properly licensed. AR 1:477-78, 2:1039-40. There is no danger that a finding
that Worm Gold products are not pesticides will create a loophole for
dangerous products to be used without proper oversight. Worm castings occur
naturally in the environment because they are the feces of worms that inhabit
normal soil and have done so since time immemorial. They are not poisonous
or dangerous to humans, and a person need not even use gloves when handling
them. AR 2:1047-48.
Rather, Hahn contends that the superior court erred in concluding that
a product is legally deemed a pesticide, regardless of its nature, whenever a
person states that it may indirectly result in pest deterrence or repellency.
Instead, a product is a pesticide under Section 12753 only when it acts directly
on pests to kill or repel them, and is only represented as a pesticide under
Section 12993 when the advertisements or statements about the product, taken
in context, state that the product directly kills or repels pests. A plant food that
is advertised as strengthening a plant’s natural bioresistance mechanisms is not
a pesticide. To hold otherwise would lead to extreme and absurd results,
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conflict with Worst and other precedents, would render the law vague and
unpredictable, would threaten important constitutional rights, and would
expand DPR authority beyond what the Legislature intended. This Court
should adopt a narrower, more reasonable reading of the definition of pesticide
and reverse the decision of the superior court.
III
HAHN DID NOT MARKET WORM GOLD
BRAND FERTILIZERS AS PESTICIDES
An examination of Worm Gold advertisements makes clear that, when
considered in context, these advertisements represented Worm Gold products
as fertilizers—that could strengthen plants’ natural bioresistance to pests and
thereby cause pest avoidance—and not as pesticides.
The superior court affirmed the DPR’s finding that Hahn “[made]
representations that [Worm Gold] products would ‘repel’ insects and ‘control’
or ‘suppress’ fungus,” and that these were “not merely claims that a stronger
and healthier plant is more resilient to pests and disease.” JA at 104. But
when read in context, these advertisements made clear that Worm Gold could
“suppress” or “control” pests only indirectly, by means of a plant ingesting the
products and being thereby strengthened to resist infestation. For example,
one advertisement sheet, reprinted in AR 1:371, does state that Worm Gold is
“effective in repelling aphids, white fly, and other insects that feed on plants,”
and would “not only control, but also suppress . . . difficult plant diseases.”
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Yet it explains that these effects are the result of the plants’ own invigoration
due to being fed Worm Gold fertilizers: “Pure Worm Castings dramatically
increases [sic] the level of chitinase producing organisms in plants . . . .
Insects are able to detect chitinase and are repelled by the taste.” Id. See also
id.:
[Worm Gold] make[s] all the nutrients in the soil readily
available for plant absorption. The more beneficial organisms,
the more nutrients become available more rapidly, and the faster
the plant grows. WORMGOLD® can even increase the
percentage of chemical fertilizer that is actually absorbed by the
plant, via biological organisms that act as nutrient regulators.
WG is organic with none of the salts of chemical fertilizers.
Another advertisement, at AR 1:171, explicitly stated that use of Worm Gold
could lead to “insect repellency, fungus control, and nematode repellency,” but
also made clear that these results would spring not from the product itself, but
from a plant fed with Worm Gold fertilizer: “Healthy and thriving plants
require a vibrant soil food web. High quality worm castings are known as the
best means to obtain a healthy soil food web . . . . Poor quality worm castings
do NOT give the desired benefits.” Id.
The trial court therefore skipped a crucial step. Not every use of words
like “repel” or “control” in an advertisement will constitute the sort of
“representation” that is prohibited by Food and Agricultural Code
section 12993. Where a fertilizer is advertised as indirectly causing pest
repellency as the ultimate consequence of a plant ingesting the fertilizer and
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thus becoming strong, the product has not been “represented to be a pesticide.”
Hahn’s advertisements, when read in context, make clear that the product was
represented as a fertilizer that could have indirect, positive effects in terms of
pest repellency.
As noted above, the law does not use the term “pesticidal claims,” and
gives no definition for this term. The danger of employing such an ambiguous
legal standard becomes clear when considering some of the testimony from the
administrative hearing. One witness in the proceedings below identified an
advertisement as making a “pesticidal claim” on the grounds that “the whole
paragraph[] says there are many positive side effects for the tree caused
by—there are many positive side effects for the tree caused by a solution.”
AR 2:965. Under this definition, all fertilizers would qualify as “pesticides,”
because all fertilizers cause positive effects on plants, and those positive
effects include helping a plant resist pests. Another witness, DPR investigator
Dan Weerasakera, identified another advertisement as making “pesticidal
claims” as follows:
Q: “. . . what did you find that would lead you to believe that
there may be a pesticidal claim?”
A: “The first sentence insinuates that, pesticidal claim.”
Q: “Would you point out the language for me?”
A: “[Quoting from advertisement:] ‘Healthy trees attacked by
bark beetles.’ There is a qualified statement that for me
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insinuates this product would make the trees healthy. That is the
rest of the sentence.”
AR 2:108-09. These statements are typical of the ambiguous and overly broad
interpretation of the term “pesticide” adopted by the DPR. To say that a
product “would make the trees healthy” is not to identify the product as a
pesticide.
The distinction between products advertised as the agents of pest
repellency and products advertised as strengthening natural bio-resistance is
crucial, to avoid sweeping a broad variety of non-pesticide products into the
definition of pesticide. The DPR held that
“[b]y stating that Worm Gold products prevent[] further growth
of pathogens and infection,” that pathogens and pests are
“consume[d],” that testing shows “insect repellency” such that
“aphids, spider mites, & white flies left” and that “you can repel
insects [and] fight fungus problems,” there can be no question
that insect control, mitigation, and repellency was touted in a
way that makes the products pesticides.
AR 2:792. But this language does not claim that Worm Gold brand fertilizers
work directly on pests, repelling or killing them. It simply (and truthfully)
promotes, in the simplistic language common to pithy advertisements, the fact
that Worm Gold brand fertilizers promote a plant’s health and thus its natural
capacity to resist pest infestation. For instance, the claim that “aphids, spider
mites, & white flies left” plants after the use of Worm Gold products is simply
a claim that pests chose to avoid the plants due to the boost in plant health
caused by the application of fertilizer. Likewise, the DPR contended that
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Hahn advertised Worm Gold brand fertilizers as “suppress[ing] pathogens . . .
repel[ling] harmful insects but no[t] beneficial insects, and allow[ing] plants
and trees to thrive in adverse conditions,” and as “causing bark beetles to avoid
and not attack trees.” AR 1:4-5. But when viewed in context, the
advertisement from which these quotes are drawn—AR 1:371—makes clear
that these benefits are indirect consequences of a plant’s ingestion of Worm
Gold fertilizers:
Worm Castings have been known for over 100 years as the best
possible soil amendment to grow better plants . . . . [A] specific
controlled feed would yield castings that 1. Improve plant
growth and soil food web conditions, 2. Repel harmful insects,
but not beneficial insects, 3. Control diseases caused by
unfriendly fungus and bacteria . . . . [W]orm castings (when
used with a quality compost) improve the health of plants.
Id. It is only by cherry-picking from the advertisements and ignoring the other
language in them that the DPR could contend that they advertise Worm Gold
products as pesticides. Taken in context, these statements are merely truthful
claims that Worm Gold, when used as a fertilizer and fed to plants, can make
plants healthy and thus resistant to pests. A product that “allows plants and
trees to thrive in adverse conditions” is a fertilizer, not a pesticide.
The superior court therefore erred in concluding that Worm Gold brand
fertilizers were advertised as pesticides, when in fact they were advertised as
plant foods that improved plants’ natural resistance to infestation. By adopting
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the prejudicially vague concept of “pesticidal claims,” the decision below
incorporated a fundamental, and reversible error.
A better standard would be to interpret “represented to be a pesticide”
as meaning that the product in question was sold to the general public on the
understanding that the product would directly kill or repel pests of its own
accord. Pesticides are generally understood to be products that operate directly
on pests to deter or to kill them, not as products that act as nutrients to plants,
which ultimately results in a pest-deterring effect. Worm Gold products were
consistently sold to the public as plant foods or fertilizers which could
ultimately cause plants to resist pest infestation. They were never marketed as
products that directly injured or repelled or killed pests of their own accord.
CONCLUSION
The decision of the superior court should be reversed, and judgment
entered for Plaintiffs.
DATED: May 6, 2011.
Respectfully submitted,
DEBORAH J. LA FETRA
TIMOTHY SANDEFUR
BRANDON M. MIDDLETON
Pacific Legal Foundation
By ____________________________
TIMOTHY SANDEFUR
Attorneys for Plaintiffs and Appellants
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CERTIFICATE OF COMPLIANCE
Pursuant to California Rule of Court 8.204(c)(1), I hereby certify that
the foregoing APPELLANTS’ OPENING BRIEF is proportionately spaced,
has a typeface of 13 points or more, and contains 10,253 words.
DATED: May 6, 2011.
_______________________________
TIMOTHY SANDEFUR
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DECLARATION OF SERVICE
I, Barbara A. Siebert, declare as follows:
I am a resident of the State of California, residing or employed in
Sacramento, California. I am over the age of 18 years and am not a party to
the above-entitled action. My business address is 3900 Lennane Drive,
Suite 200, Sacramento, California 95834.
On May 6, 2011, true copies of APPELLANTS’ OPENING BRIEF
were placed in envelopes addressed to:
G. LYNN THORPE
Deputy Attorney General
State of California
Department of Justice
1300 “I” Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Counsel for Defendant and Respondent
COURT CLERK
Sacramento County Superior Court
Gordon D. Schaber Courthouse
720 Ninth Street
Sacramento, CA 95814
COURT CLERK (4 Copies)
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102-4797
which envelopes, with postage thereon fully prepaid, were then sealed and
deposited in a mailbox regularly maintained by the United States Postal
Service in Sacramento, California.
- 45 -
I declare under penalty of perjury that the foregoing is true and correct
and that this declaration was executed this 6th day of May, 2011, at
Sacramento, California.
_______________________________
BARBARA A. SIEBERT