Despite its deregulatory efforts in other areas, the Trump administration continues to enforce pesticide laws rigorously as part of its stated goal of returning EPA to its “core mission.” EPA regulates pesticides pursuant to its authority under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq. “Pesticides” are broadly defined to include any substance intended for destroying, mitigating, or repelling any pest, which include not only insects and rodents but also bacteria and other microorganisms. 7 U.S.C. § 136(t)-(u). Thus, pesticides that must be registered under FIFRA can include a wide range of products not colloquially thought of as pesticides, such as alcohol wipes used for sanitizing surfaces.
Partly as a result of a 2016 increase in FIFRA penalties, EPA collected an all-time high of over $7 million in publicly-announced penalties in 2018 to date, far exceeding the equivalent figures of $2 million in 2016 and $774,000 in 2015. The overall number of enforcement cases also remains consistent with past years.
The Trump EPA’s continued emphasis on FIFRA enforcement underscores the need for companies to engage with counsel to ensure compliance with FIFRA and avoid the business disruption, brand damage, and significant penalties that can accompany FIFRA violations.
Recent Trends & Data
Covington’s analysis of EPA’s enforcement data demonstrates that EPA’s settlements for FIFRA violations under the Trump administration, when compared to the previous administration, have continued at a similar pace and a higher dollar amount. EPA publicized 16 settlements in 2017-2018, totaling over $8.5 million in penalties. By contrast, in 2015-2016, EPA publicized 21 settlements, for a total penalty amount of $2.7 million.
Part of the reason for this jump in penalties is a 2016 EPA rule implementing the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, which increased the maximum penalty for a single FIFRA violation from $7,500 to $19,446. EPA considers each sale or shipment of a product to be a separate violation subject to a separate penalty, which can quickly lead to substantial penalty amounts.
Our analysis of EPA’s enforcement data also shows that EPA’s overall number of FIFRA cases remains relatively constant, as demonstrated in Figure 1 below. Interestingly, EPA’s Region 5, long one of the more active regions for FIFRA enforcement, has significantly increased the volume of its enforcement cases, bringing nearly half of the agency’s enforcement cases in 2017-2018, as seen in Figure 2.
Recent EPA Actions
Three recent EPA actions illustrate the broad scope of EPA’s return to its core mission of FIFRA enforcement.
In the first case, EPA ordered a company to stop nationwide distribution, transport, and sales of a pesticide that was registered with EPA. The registered version had been manufactured in the United States, but the company had shifted manufacturing to China without obtaining EPA approval or registering the new manufacturing site, resulting in an improperly registered pesticide.
In the second action, two companies reached a settlement with EPA after a water filtration device manufacturer imported pesticidal products without filing the proper EPA notice of arrival forms needed to import a pesticide.
In the third case, a company settled with EPA after selling electronic cleaning products that claimed to kill germs, but were not registered with EPA. EPA’s inspector identified the product by examining the company’s website. This enforcement action is consistent with a broader EPA trend, particularly in the Midwest (EPA Region 5), of bringing enforcement actions against disinfectants that are not registered with EPA, even though those disinfectants may have been approved by a different federal agency, the FDA.
Ensuring FIFRA Compliance
The FIFRA scheme is complex. For example, even determining whether a product makes a permissible “cleaning” claim or an impermissible “antimicrobial” claim that requires the product to be registered with EPA can be a tricky task. Likewise, FIFRA’s import requirements and the myriad instances where companies must notify EPA of changes to their FIFRA-registered products involve intricate EPA regulations and guidance.
With EPA inspectors now able to identify violations merely by reviewing a website, proactive efforts to ensure compliance are critical in forestalling enforcement actions. FIFRA enforcement not only poses the risk of penalties but can result in immense damage to a company’s brand. Particularly in light of EPA’s return to its “core mission” of bringing FIFRA enforcement cases, it is critical that companies remain vigilant regarding FIFRA compliance issues.