EPA on March 26 released a guidance document explaining its approach to enforcement actions in light of the COVID-19 pandemic.  While most aspects of that document explain areas in which EPA exercising enforcement discretion to provide flexibility to regulated parties in response to the pandemic, EPA is not taking that approach with respect to antimicrobial pesticide products, including disinfectants.  To the contrary, EPA made clear that it is “especially concerned about pesticide products entering the United States, or produced, manufactured, distributed in the United States, that claim to address COVID-19 impacts. The agency expects to focus on ensuring compliance with requirements applicable to these products to ensure protection of public health.”

This aspect of EPA’s guidance is consistent with its recent enforcement actions.  EPA on March 25 issued its first press release publicizing a FIFRA enforcement action during the coronavirus pandemic, with the agency explaining that it prevented several shipments of an unregistered pesticide that claimed to mitigate viruses from entering the country.  In its press release, EPA emphasized that the agency “will not tolerate companies selling illegal disinfectants and making false or misleading public health claims during this pandemic crisis.”  This enforcement action is likely to be the first of many, given the importance of disinfectant products to combatting the COVID-19 pandemic.

EPA’s guidance and enforcement activity underscore the importance of companies continuing to ensure compliance with FIFRA requirements, as well as requirements established by state regulators.  Key FIFRA requirements include:

  • Ensuring that all products for which pesticidal claims are made, including claims to mitigate viruses, are registered as pesticides with EPA;
  • Not deviating from EPA-approved language on the product’s label;
  • Carefully reviewing all advertising and marketing claims to confirm that they do not “differ substantially” from EPA-approved claims for the product; and
  • Assessing EPA’s evolving guidance regarding its emerging viral pathogens policy and products that are expected to be effective against the coronavirus, including the claims that may and may not be made for such products. EPA has established an expedited review process for products to be approved under that policy, if adequate data already exists for the product.
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Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, and the Occupational Safety and Health Act.

Mr. Brugato has extensive experience with EPA’s Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.