Consistent with consumer trends and the ever-increasing role of internet sales, U.S. EPA is targeting on-line pesticide sales as an enforcement priority. In a preview of the anticipated April 1 release of preliminary agency enforcement priorities, Acting Deputy Director of EPA’s Office of Enforcement and Compliance Assurance (OECA), Greg Sullivan, told attendees at the annual Association of American Pesticide Control Officials (AAPCO) conference that state and local officials supported an increased emphasis on ensuring that such sales comply with Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requirements.
Last February’s settlement of an enforcement action against Amazon for the sale of unregistered or misbranded pesticides is seen as a model for future agency actions, as well as a warning to other companies selling pesticides on-line. The settlement included a $1.2 million civil penalty and, perhaps most importantly, the company’s agreement to develop an on-line training course (in English, Spanish and Chinese) on pesticide regulations and policies that is now mandatory for all entities selling pesticides on the website. Amazon also implemented a more aggressive monitoring program for illegal pesticides, including a sophisticated computer-based screening system supported by trained staff.
In announcing the Amazon settlement, EPA noted a particular concern that “[n]on-English speaking members of the public are at increased risk from … pesticides that are illegal in the U.S. but have long been used throughout Asia. These populations’ familiarity with these products make it more likely they will order them from online sources such as Amazon.”
Another likely target for on-line sales enforcement is the marketing of antimicrobial “treated articles” with unregistered “public health” claims. “Treated articles” are products that incorporate additives to provide protection against bacteria that cause odors, staining, or degradation of the product itself. Such products must make clear that the antimicrobial treatment does not protect the customer from bacteria or other microbes, and may not make claims, explicit or implied, about protection of human health (“public health claims”). In practice, the line can be fuzzy and companies often cross it (particularly by failing to properly qualify their “product protection” claims).
EPA’s final enforcement priority guidance is scheduled for release in June, after a short public comment period after the draft is issued in April. Additional information on EPA’s February 2018 settlement with Amazon is available here.