Shoes, headphones and door knobs are among recent products that have been the subject of enforcement actions and penalties ranging from $98,000 to $230,000 for being sold with labels or marketing materials that claim the product repels or inhibits the growth or spread of bacteria, mildew or germs.
Unverified claims on a product’s packaging or marketing materials that it limits or controls the spread of e. coli, salmonella, staph and pseudomonas, mold, mildew, fungus, bacteria or other germs are the subject of an increasing number of enforcement actions. Even if the manufacturer is using a registered pesticide to treat its product, it may not make such public health claims if the product was never tested or registered to protect consumers.
The U.S. Environmental Protection Agency (EPA) and California Department of Pesticide Regulation (DPR) are charged with enforcement of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and related state statutes. They have the authority to assess penalties under FIFRA, since it requires that companies register pesticide products before making claims about their ability to control germs or pathogens. Recently, both agencies have stepped up enforcement activity against a widening array of household, consumer and even industrial products that claim to have antimicrobial properties.
FIFRA and its corresponding state statues provide for both criminal and civil prosecution. The criminal provisions provide for a misdemeanor conviction and a fine of not less than $500 and no more than $5,000 and/or imprisonment of not more than six months for a first offense. “Upon a second or subsequent conviction of the same provision,” a person is subject to a fine of not less than $1,000 and no more than $10,000 and/ or imprisonment of not more than six months.
The civil provision provides for a civil penalty of not less than $1,000 and no more than $10,000 for a first offense. For the “second or subsequent violation that is the same as a prior violation or similar to a prior violation,” a fine of not less than $5,000 and no more than $25,000 is provided for. However, it is common for these cases to settle for 30 percent of sales revenue of th e product sold with the improper label.
Product manufacturers are often caught unaware, as they are selling a product (e.g, shoes, headphones, door knobs) that is not generally considered a “pesticide.” There are some steps manufacturers can take now to substantially reduce their risks and potential liability. Manufacturers should consider conducting a thorough review of product labels and marketing materials to ensure that no untested pesticidal claims are being made. To the extent that some are found, a correction to approvable language should be made. In some instances where the public health claims are critical to the marketing of the product, the manufacturer should consider seeking EPA or DPR approval for its labels. Lastly, the manufacturer should review the agencies’ self-disclosure policies and consider whether self-disclosure is appropriate to reduce liability, which will often result in a reduction of penalties to 10 percent of sales.