EPA to Retailers: Watch For ‘Pesticidal’ Claims

Cleaning and pest control products sold at 99¢ Only Stores will kill germs and bugs…and who knows what else.  In a significant ruling, an EPA administrative law judge has ordered 99¢ Only Stores, a chain with 273 stores across the country, to pay $409,490 in penalties for the sale of illegal unregistered and misbranded pesticides contained in household products.

At the root of the fines are three cleaning and pest control products sold at the chain stores, which were being sold in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). A cleaning agent from Mexico called “Bref Limpieza y Disinfección Total con Densicloro” (Bref Complete Cleaning and Disinfection with Densicloro), was not registered with EPA, despite what the agency called “pesticidal claims” on the product’s label. The other products that violated the Act are the innocuous-sounding “Farmer’s Secret Berry & Produce Cleaner,” which contains an unregistered pesticide (guess that was the farmer’s secret) and “PiC BORIC ACID Roach Killer III,” which did have EPC labels but they were upside-down or inside out, making them hard to read.

The fine is the largest contested penalty ever ordered by an EPA administrative law judge against a product retailer under FIFRA, according to the EPA’s report, released Wednesday.

The EPA ruling sends a strong message to all retailers and producers that FIFRA has legs and will be enforced. It’s not a matter of the company selling products they know to be hazardous, so much as the fact that it failed to ensure that the products it sells are complaint with EPC regulations. It defines a pesticide as “any substance . . . intended for preventing, destroying, repelling, or mitigating any pest” and a “pest” includes any “virus, bacteria, or other micro-organism.” So basically the regs say that if you make bold claims that your product can kill stuff, you better register it as a pesticide.

Take the Farmer’s Secret product. Its label claimed it “Inhibits Mold, Fungus & Bacteria, including Ecoli.” With that wording, it would need to register the product with the EPA. Missing from the labels, however, were the requisite state and Federal (EPA) registration numbers, which is what led EPA investigators to file the violation reports. Reports of these types of violations at 99¢ Only Stores date back to 2004.

But, interestingly, the motivation behind the hefty fines aren’t just to enforce that products using pesticides should be registered, but that products that claim to have the power to kill or prevent bacteria or other harmful micro-organisms could actually lead to unsafe practices by consumers.

From the agency’s guidelines on products treated with pesticides:

EPA is concerned about these claims because, in addition to being unlawful, they are also potentially harmful to the public (e.g., if people believe that a product has a self-sanitizing quality, they may become lax in their hygiene practices). Practicing standard hygiene practices has been proven to prevent the transmission of harmful microorganisms and, therefore, reduce the possibility of public health risk.

In its 2008 Annual Report, 99¢ Only Stores showed annual net sales of $1.2 billion, an annual net income of $2.9 million, and $650 million in total assets.

Given all the problems linked with lead in low-cost items sold at dollar stores, perhaps it’s not surprising that a dollar-store chain would end up on the wrong side of an EPA suit. But the agency’s enforcement of FIFRA has hit some less-likely targets, as well. In 2009, VF Corporation, an apparel giant that owns more than 20 clothing brands faced nearly $1 million in fines from the EPA because its brand The North Face made claims that a footbed liner it sold contains agents that would “control germs and pathogens and prevent disease-causing bacteria.” Those agents weren’t registered with the EPA. In the end, VF had to pay $207,500 for allegedly making unsubstantiated public health claims.

Freelance writer Mary Catherine O'Connor finds that a growing number of companies are proving the ways that they can make good financially, socially and environmentally (as the triple bottom line theory suggests).With that in mind, she contributes to Triple Pundit, as well as to Earth2Tech and other pubs focused on sustainability. She also writes The Good Route, an Outside Magazine blog that addresses the intersection of sustainability and the active/outdoor life.To find out more, or to reach her, go to www.mcoconnor.com.

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