(Beyond Pesticides, August 18, 2009) In a letter to Responsible Industry for a Sound Environment (RISE), the national trade association representing producers and suppliers of specialty pesticides and fertilizers, the U.S. Environmental Protection Agency (EPA) clarifies for pesticide companies federal pesticide label regulations and the agency‚Äôs position on use of false and misleading claims like “Professional Strength.”
The letter, dated May 15, 2009 and posted on EPA‚Äôs website last week, addresses pesticide products that are sold and distributed and labeled ‚ÄúProfessional‚ÄĚ and ‚ÄúProfessional Grade‚ÄĚ among others, in product names and advertising. EPA finds that such statements are ‚Äúinappropriate.‚ÄĚ
According to the letter, ‚ÄúSection 12 (a) (1) (E) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), states that it is unlawful to distribute or sell ‚Äėany pesticide which is‚Ä¶.misbranded.‚Äô A pesticide is misbranded if ‚Äėits labeling bears any statement, design or graphic representation relative thereto or to its ingredients which is false or misleading in any particular.‚Äô FIFRA ¬ß 2(q)(1)(A) [emphasis added]. The following describes why EPA finds use of ‚ÄúProfessional Grade‚ÄĚ in these products‚Äô labeling and marketing to be a false and misleading claim and therefore unacceptable.‚ÄĚ
The letter continues, ‚Äú‚Ä¶’Professional Grade‚Äô implies a falsehood that pesticides are classified by grade, which they are not. This is a false and misleading comparison to other pesticides under 40 CFR ¬ß 156.10(a)(5)(ii). ‚ÄúProfessional Grade‚ÄĚ implies or could well imply that the products are more efficacious than competitors‚Äô products. This is likely a false and misleading statement about the comparative effectiveness of the product under 40 CFR ¬ß156 (a)(5)(iv).‚ÄĚ
The use of ‚ÄėProfessional‚Äô is misleading, according to EPA, since not only does it not explain which professionals are being referenced, but the products labelled in this manner are not restricted use products (those only available to licensed pest control operators), and are legally available to average consumers. EPA also goes on to state these claims, which were not accepted at the time of the products’ registration, are in violation of 40 CFR ¬ß 152.132(d), and thus, both the distributor and the basic registrant are liable for the violations.
However, while EPA is aware of these misleading label claims and violations, the Office of Pesticide Programs (OPP), which oversees pesticide registration, has yet to take any definitive action on such misbranding. The letter states that OPP is ‚Äúconsidering whether to refer this and similar matters to the Office of Enforcement and Compliance Assurance for potential enforcement action.‚ÄĚ In the past, EPA has maintained that pesticide labels should, on the whole, be free from any symbol or claim that might mislead consumers or give a false sense of a product‚Äôs safety. Crackdowns concerning the sale and distribution of unregistered, mislabeled pesticides have occurred in the past, with EPA maintaining that this is a serious violation that can result in harm to public health and the environment. However, EPA enforcement against non-compliance is generally very limited.
Last fall, EPA withdrew its draft notice on label statements regarding cause marketing and third-party endorsements. In this particular case, the Clorox Company submitted an application to EPA to add cause marketing language and the Red Cross symbol to some of its labels, specifically to display a philanthropic partnership between it and the American Red Cross. After a two-year process of EPA proposals and public comment periods, and a large public outcry by states, environmental and activists groups, including Beyond Pesticides denouncing this action, the agency determined that such label statements do nothing to promote ‚Äúconsumer understanding‚ÄĚ of the risks and applications of pesticide products, and will not be encouraging further submissions.
Currently, limited label information, including the non-disclosure of inert ingredients, provide consumers with little information with which they can make informed decisions when buying pesticides and choosing less hazardous products.