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April 9, 2010

EPA Posts Fact Sheet on Determining If a Cleaning Product Is a Pesticide

Bergeson & Campbell, P.C.

In a March 2010 fact sheet, the U.S. Environmental Protection Agency (EPA) describes how to determine whether a cleaning product is a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Under FIFRA, pesticide products must be registered if they are considered to be intended for a pesticidal purpose. EPA states that products are considered to be for a pesticidal purpose “if the person who distributes or sells them claims, states or implies that they can or should be used to prevent, destroy, repel or mitigate a pest.” Claims that a product affects a pest’s habitat or food source are claims that the product mitigates the pest, according to EPA. EPA states: “A product need not act directly on a pest in order for it to mitigate the pest and therefore be considered a pesticide.” Direct or indirect claims that a product mitigates a pest by removing food or habitat are pesticidal claims and require the product to be registered under FIFRA. The list of products, including cleaning agents, that are not pesticides because they are not used for a pesticidal effect is limited to those products for which no pesticidal claim is made on the product’s labeling or in connection with its sale and distribution. The fact sheet is available online.

Examples of Pesticidal Claims on Cleaners

EPA provides the following examples of pesticidal claims that require EPA registration:

  • Removal of pest breeding sites;
  • Removal of pest habitats, including removing nutrients from areas where insect larvae may mature;
  • Cleaning claims that the product can be used where “contamination” is habitat or food for pests;
  • Cleaning claims for direct removal of the pest;
  • Removal of scum where pests breed;
  • Claims the product works through out-competing the pest for nutrition or habitat;
  • Removal of the pest through physical means such as by suffocating or drowning the pest (not a habitat claim) (products intended to exclude pests only by providing a physical barrier against pest access, and which contain no toxicants do not require registration);
  • Removal or digestion of biofilm;
  • Claims that a product sanitizes or disinfects;
  • Mention of a specific microorganism or “germs” or the removal of habitat where microorganisms can hide, thrive, or grow;
  • Removal of bacterial odors; and
  • Removal of unspecified “allergens” or the habitat where “allergens” can hide, thrive, or grow.

Information for Producers of Unregistered Cleaning Products Sold in Association with IPM Product Lines

According to EPA, unregistered cleaning products sold in association with Integrated Pest Management (IPM) product lines “frequently appear to be making unlawful claims related to pest control.” EPA notes that, if a company’s logo mentions pest control, “the label as a whole may be seen to imply it is a pest control product. Attaching such logos to a cleaning product can require registration of the cleaning product.” If unregistered cleaning products are sold or marketed in association with pesticides, they should be clearly distinguishable from the claims made for the pesticides. If not, according to EPA, the associated pesticidal claims may be considered to be claims attached to the cleaning products, making them pesticides that need to be registered.

EPA states that, similarly, images of pests, or characteristic pest habitats, on the labels of products aimed at pest habitat or food removal “imply the product is a pesticide and may require EPA registration.” FIFRA prohibits pesticidal claims in brochures, pamphlets, and Internet sites connected with the sale or distribution of unregistered pesticides. This prohibition also extends to testimonial claims, as well as claims made by sales staff, either the manufacturer’s or service provider’s.

Enforcement Actions

EPA notes that, when appropriate, it takes enforcement action against any person who sells or distributes a pesticide that does not meet the requirements of FIFRA. Once EPA decides that a FIFRA violation has occurred, EPA determines the appropriate level of enforcement response for the violation. Enforcement options include, but are not limited to:

  • Notices of Warning;
  • Stop Sale, Use, or Removal Orders; and
  • Civil Penalties.