EPA Continues To Aggressively Target Distributors And Retailers Selling 'Antimicrobial' Products

With each passing year, retail markets seem to become more and more inundated with products described in one fashion or another as having "antimicrobial," "antibacterial," "fungistatic," "germicidal" or similar properties. These so-called "antimicrobial" marketing claims now span a vast range of consumer products from pillows, cutting boards and pool supplies, to keyboards, shoes, toilet seats—even cat litter, to name just a few.

Careless use of these terms can expose distributors and retailers to potentially significant liability under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136 et seq.

In relevant part, FIFRA prohibits any person from selling, distributing or using a pesticide in the United States unless it is properly registered with the EPA, or qualifies for one of the narrow regulatory exemptions. Because FIFRA and its implementing regulations define the foundation terms "pesticide" and "pest" very broadly, products making "antimicrobial" claims themselves constitute "pesticides" under the statute. See 7 U.S.C. § 136(t)-(u) and 40 C.F.R. §§ 152.3, 152.5(d) (providing definitions). Consequently, product distributors and retailers remain fully exposed to FIFRA liability even though an underlying antimicrobial additive incorporated into a "pesticidal" product is itself properly registered.

The "Treated Articles" Exemption

Many manufacturers, distributors and retailers look for liability protection in the so-called "treated articles" exemption contained in FIFRA's implementing regulations, 40 CFR §152.25(a). On its face, that provision exempts from all FIFRA requirements, including registration, any "article or substance treated with, or containing, a pesticide to protect the article or substance itself ... if the pesticide is registered for such use."

Applying the regulation literally, only two requirements must be satisfied for a product to qualify for the treated articles exemption: (1) it must be treated with or contain a pesticide to protect the product itself; and (2) the added pesticide must be properly registered for that use.

EPA, however, arguably does not apply the literal words of its own regulation. Instead, in a series of guidance and policy documents that culminated in a 2000 Pesticide Registration Notice (PR Notice 2000-1, Mar. 6, 2000), EPA espoused a number of hardline positions.

First, EPA maintains that the sole purpose of the pesticidal treatment must be to protect the article or...