Under EPA’s 2016 Emerging Viral Pathogens policy, pesticide registrants can obtain EPA “pre-approval” for their product to make claims to kill emerging viral pathogens when the policy is “activated,” so long as the pesticides have been approved for use on similar viruses.  These include common household and workplace disinfectant products, which are generally regulated as pesticides by EPA.  The policy was activated for the first time in response to the COVID-19 outbreak, allowing certain claims to mitigate the coronavirus to be made for certain registered pesticides approved under the policy.  Several recent OSHA and EPA developments underscore the importance of pesticide registrants securing approval under the policy, as well as its limitations.

OSHA’s recent guidance on COVID-19 urges employers to use pesticides approved under the policy, making plain the importance of securing such approval.  Specifically, OSHA recommends that “all employers” should disinfect surfaces regularly, and “[w]hen choosing cleaning chemicals, employers should consult information on Environmental Protection Agency (EPA)-approved disinfectant labels with claims against emerging viral pathogens.  Products with EPA-approved emerging viral pathogens claims are expected to be effective against SARS-CoV-2 based on data for harder to kill viruses.”   OSHA’s guidance is consistent with that of the CDC, which recommends use of “products with the EPA-approved emerging viral pathogens claims.”

EPA has taken steps to speed approval of COVID-19 claims for products under the Emerging Viral Pathogens policy, announcing this week that it will expedite claims for currently-registered disinfectants that would satisfy the policy, so long as new efficacy data is not needed.  Registrants that have not already done so will want to take advantage of this expedited process, which is reminiscent of the process EPA established in 2009 to allow registrants to make claims to control that year’s H1N1 virus.

The COVID-19 pandemic is also likely to have broader implications for pesticide registrants.  Most obviously, companies making unapproved claims to mitigate the coronavirus are likely to face a significant enforcement risk, given the public-health nature of those claims.

More subtly, EPA takes the view that even companies with approval under the Emerging Viral Pathogens policy are subject to a number of limitations on the claims they can make, and to whom they can be made.  For example, EPA’s guidance limits such claims to “the following communications outlets: technical literature distributed exclusively to health care facilities, physicians, nurses and public health officials, ‘1-800’ consumer information services, social media sites and company websites (non-label related),” and prohibits the claims from being included on product labels.  Registrants must bear these EPA restrictions in mind when formulating their marketing materials.

Finally, EPA may consider changes to the Emerging Viral Pathogens policy in light of its experience during the COVID-19 outbreak.  For example, if consumers were unable to be fully informed of products’ ability to be used to mitigate the coronavirus due to restrictions on the communications outlets where such claims could be made and the inability to include coronavirus claims on product labels themselves, EPA might revisit that issue.  Registrants and other interested parties should thus focus not only on complying with the existing policy, but also consider what improvements could be made to help contain future emerging pathogens.