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Applicability of the Product Labeling Rule to Methyl Bromide



Methyl bromide is used as a pesticide and fumigant. An EPA rule under Title VI of the Clean Air Act (58 FR 65018, December 10, 1993) lists methyl bromide as a class I ozone-depleting substance and sets a phaseout schedule for methyl bromide in order to protect stratospheric ozone. Another EPA rule under Title VI (58 FR 8136, February 11, 1993) requires products "containing" or "manufactured with" a class I ozone-depleting substance to be labeled as such.

In the rulemaking listing methyl bromide as a class I substance, EPA stated that activities involved in growing, harvesting, storing, and transporting food are part of an agricultural process that falls outside the intent of Congress to require labeling on products "manufactured with" a class I substance. The Agency noted that the ordinary meaning of the phrase "manufactured with" does not include such activities, since they do not involve making something "from raw materials by hand or by machinery" (citing a dictionary definition of "manufacture.") The Agency also noted the practical difficulty of labeling raw agricultural products, which are usually sold without any packaging at all. EPA thus concluded that "products treated with methyl bromide would not require labeling".

In 1994, NRDC and several other groups filed a petition in the U.S. Court of Appeals challenging the labeling element of the methyl bromide rule. They were concerned that EPA’s statement could be construed to mean that no product treated with methyl bromide, even a product meeting the labeling rule’s definition of products "containing" or "manufactured with" a class I substance, was subject to the labeling rule. As settlement of this litigation, EPA issued the Notice of Clarification described above. The Notice states that products "containing" or "manufactured with" methyl bromide are subject to requirements of the 1993 labeling rule on the same basis as all other products manufactured with class I substances.

The Notice also explains that EPA is not aware of any agricultural product that "contains" or is "manufactured with" methyl bromide, as those terms are defined by the labeling rule. In particular, raw food commodities grown for the fresh food market and produced with the use of methyl bromide do not meet the definitions of products "containing" or "manufactured with" methyl bromide, and are therefore not subject to the labeling rule’s requirements.


The Notice of Clarification is published in the Federal Register at 63 FR 26983 (May 15, 1998).

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