On March 5, 2008, the United States Environmental Protection Agency announced that it had reached a settlement in the amount of $208,000 with ATEN Technology, Inc. of Irvine California for claims made by ATEN’s subsidiary, IOGEAR, relating to the antimicrobial properties of nanocoatings on several products IOGEAR sold.

Under the Federal Insecticide, Fungicide and Rodenticide, Act (“FIFRA”), products that kill or repel bacteria or germs are considered by the EPA to be pesticides. The products must be registered and, prior to registration, must be tested to demonstrate that they will not pose an “unreasonable risk” when used as directed.

Although the EPA first announced in 2006 that it intended to regulate antimicrobial nanomaterials under FIFRA, the ATEN settlement may mark the beginning of such enforcement actions as a method of achieving that regulation. In that regard, the press release issued by the EPA in connection with the ATEN/IOGEAR settlement is particularly telling because it emphasized that the EPA is “seeing far too many unregistered products that assert unsubstantiated antimicrobial properties.” Consequently, any company that markets products containing antimicrobial nanomaterials, and which will emphasize the product’s ability to kill or control pathogens, must be aware of FIFRA and its implications before making such claims.