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May 19, 2010

EPA Announces Draft PR Notice Concerning False or Misleading Pesticide Product Brand Names

Bergeson & Campbell, P.C.

Today the U.S. Environmental Protection Agency (EPA) published a Federal Register notice announcing the availability of, and seeking public comment on, a draft Pesticide Registration (PR) Notice entitled “False or Misleading Pesticide Product Brand Names.” According to EPA, the draft PR Notice is intended to provide guidance to applicants, registrants, and distributors concerning pesticide product brand names that may be false or misleading, either by themselves or in association with particular company names or trademarks. Comments are due June 18, 2010. The draft PR Notice will be posted online at, in docket EPA-HQ-OPP-2010-0282.

On March 28, 2002, EPA announced the availability of this draft PR Notice for public comment, and EPA received comments from 28 parties. According to EPA, it reviewed the comments, made appropriate revisions to the draft PR Notice, and prepared a written response to comments, which will be available in the docket. The revised draft PR Notice clarifies how statutory and regulatory provisions that prohibit pesticide labeling from being false or misleading apply to product brand names. In today’s notice, EPA states that, under Sections 12(a)(1)(E) and 2(q)(1)(A) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and 40 C.F.R. Sections 156.10(b)(2) and 156.10(a)(5), “products with brand names that, in a false or misleading manner, state or imply safety, efficacy or comparative claims, or are otherwise false or misleading in any particular, are considered to be misbranded and may not be sold or distributed.” The revised draft PR Notice explains the statutory and regulatory requirements that a pesticide product brand name, either by itself or containing or located in close proximity to a company name or trademark, not be false or misleading. The draft PR Notice includes examples of potentially false or misleading product brand names. EPA states that it “will be applying these regulations as interpreted in this notice when evaluating applications for new products or brand names, reviewing notifications for alternate or changed brand names, reviewing applications for registration, or conducting registration reviews.” EPA encourages applicants and registrants to review their product names in light of its guidance, and, if warranted, take corrective action within two years of the issuance of the final PR Notice. After the final implementation date, EPA may consider the guidance in the final PR Notice when determining whether a product is misbranded under FIFRA.

EPA notes that the draft PR Notice is intended to provide guidance to EPA personnel and decisionmakers and to pesticide registrants. While the requirements in FIFRA and EPA regulations are binding on EPA and the applicants, the draft PR Notice “is not binding on either EPA or pesticide registrants, and EPA may depart from the guidance where circumstances warrant and without prior notice. Likewise, pesticide registrants and applicants may assert that the guidance is not appropriate categorically or not applicable to a specific pesticide or situation.”