EPA recently released a compliance advisory addressing UV lights that make claims to mitigate the novel coronavirus (or other viruses or bacteria), which the agency regulates as pesticidal devices under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). While the advisory largely reiterates past guidance relating to pesticidal devices, which this blog previously discussed, it does underscore that EPA is particularly focused on UV lights, and contains three important cautions for companies making claims that their UV light products kill the coronavirus or other microbes.
First, EPA has emphasized that the efficacy of UV lights can vary based on “a variety of factors including, but not limited to, the device’s duration of use, distance of the light from the surface intended to be treated, the UV wavelength, the specific pest being targeted, the strength or wattage of the UV light bulb, the age of the UV light bulb, shadow areas or other factors.” Accordingly, companies making pesticidal claims for their UV lights should ensure that they are providing appropriate directions for use, and that the efficacy data they generate in support of their claims is generated consistent with those directions for use as well as the other characteristics of the product. Companies may also wish to generate efficacy data in a variety of contexts (e.g., with aged bulbs, on different types of surfaces) to ensure that there are efficacy data supporting the claims for the life of the product, and in the various contexts in which it may be used.
Second, EPA has noted that it “has been receiving complaints that UV light devices may be in violation of FIFRA. These complaints are being reviewed and EPA intends to pursue enforcement, as appropriate.” In light of EPA’s continued focus on these devices, and its stated intent to pursue enforcement actions, companies manufacturing or distributing UV lights should consider reviewing their claims, marketing materials, and supporting data to ensure that their products are compliant with FIFRA.
Finally, as with its earlier advisory, EPA has not clarified what types of efficacy data would suffice to make coronavirus claims for UV lights or other pesticide devices. Accordingly, interested parties should keep a close eye on further developments in this evolving area.