By Matthew G. Lawson

As discussed in a prior post on Corporate Environmental Lawyer, on January 29, 2020, the United States Environmental Protection Agency (“USEPA”) activated its “Emerging Viral Pathogens Guidance for Antimicrobial Pesticides” (the “Guidance”) to help curb the spread of the novel coronavirus, the cause of COVID-19, in the United States.  The Guidance allowed manufacturers of disinfecting/antimicrobial products that are regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to revise their FIFRA registration and promote their products’ effectiveness against specific “emerging pathogens,” including the Coronavirus.  Relying on the Guidance, manufacturers can revise their FIFRA registrations to provide a statement of their products’ efficacy against the pathogen “in technical literature distributed to health care facilities, physicians, nurses, public health officials, non-label-related websites, consumer information services, and social media sites.” 

As of April 23, 2020, USEPA’s expedited FIFRA review process has produced a list of nearly 400 different disinfectant products approved by USEPA as being effective against the Coronavirus.  “During this pandemic, it’s important that people can easily find the information they’re looking for when choosing and using a surface disinfectant,” said EPA Administrator Andrew Wheeler. “With this expanded list, EPA is making sure Americans have greater access to as many effective and approved surface disinfectant products as possible and that they have the information at their fingertips to use them effectively,” Wheeler continued.

In addition to providing the opportunity for an expedited review of disinfectant products, USEPA has taken the additional step of initiating enforcement actions against companies and individuals accused of selling illegal products that claim to protect again the Coronavirus.  For example, on March 25, 2020, USEPA announced that it had seized shipments of an illegal health product, “Virus Shut Out,” which claimed to protect users from the Coronavirus.  Because no effort was made to secure a proper FIFRA-registration for the product, USEPA stated that the untested product had the potential to be “harmful to human health, cause adverse effects, and may not be effective against the spread of germs.”

On April 23, 2020, USEPA took the additional step of warning numerous e-commerce companies, including Facebook Inc., eBay Inc., Alibaba Group Holding Ltd., and others, that their platforms were being used to sell unregistered disinfectant products that fraudulently claimed to be effective against the Coronavirus.  The e-commerce platforms were instructed by USEPA to “take action against these dishonest dealers and immediately take these illegal products off of their sites.”  USEPA’s warning indicated that any business failing to properly monitor its platform would be subject to enforcement proceedings under FIFRA.  USEPA’s threatened actions would not be the first time the agency brought enforcement actions against online retailers for selling unregistered products in violation of FIFRA.  In February 2018, USEPA entered into a settlement agreement with Amazon Services LLC (“Amazon”) for nearly 4,000 violations of FIFRA, dating back to 2013.  Under the terms of the agreement, Amazon was required to pay a civil penalty of approximately $1.2 million and implement more stringent controls to ensure unregistered products were not sold on its platform.

Please feel free to contact the author with questions or for further information about the FIFRA registration and recent USEPA warning.  For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.