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New York State Attorney General Orders Companies to Stop Making Anti-Zika Claims In Connection with Minimum Risk Pesticides and Pesticide Devices

On August 3, 2016, the New York State Attorney General issued cease-and-desist letters to seven companies making pesticidal claims to prevent or protect consumers against the Zika virus.  The claims at issue were made in advertisements for products containing certain “minimum risk” active ingredients, as well as several pesticide devices.  According to Attorney General Eric T. Schneiderman, the letters ordered the companies to immediately stop advertising their products as “Zika-protective” or “Zika-preventive,” which Schneiderman identified as false and deceptive claims.  While the Attorney General subsequently announced that six of the seven companies had either removed the allegedly misleading claims or altogether removed their products from online sales within 24 hours of the Attorney General’s action, his investigation remains ongoing.  Each company may now face liability under both Federal and New York State law.

Products Making Pesticidal Claims Must Be Registered Under FIFRA and State Law or Meet an Applicable Exemption

Under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), all products making pesticidal claims must either first be registered with the U.S. Environmental Protection Agency (EPA) or otherwise meet an applicable exemption from registration.  Pesticidal claims include express or implied claims to prevent, destroy, repel, or mitigate any insect or other pest, and Federal law prohibits the use of pesticidal claims in any advertisements associated with products that have not been registered for such use under FIFRA.  In addition, all products offered or advertised to consumers in New York must separately be registered with New York’s Department of Environmental Conservation (DEC) before they may be marketed for pesticidal use. 

Minimum Risk Pesticides and Pesticide Devices Remain Subject to Key Regulatory Requirements Under FIFRA and New York State Law

The products subject to the Attorney General’s August 3rd order included both botanical oils and high-frequency ultrasonic devices.  While EPA and DEC both recognize a limited registration exemption for products that contain a “minimum risk” active ingredient listed at 40 C.F.R. Section 152.25(f)(1) – including many botanical oils – eligibility for the exemption requires such products to meet several other regulatory criteria, including a prohibition against claims to control or mitigate organisms that pose a threat to human health or insects carrying specific diseases.  In this regard, EPA policy specifically prohibits a minimum risk pesticide from making claims to control mosquitoes that can transmit the Zika virus.  A minimum risk product’s label must also avoid making any false or misleading statements.  

Pesticide devices are not subject to FIFRA registration requirements, however they must still comply with certain labeling and production requirements and, under all circumstances, distributors must avoid making any false or misleading statements in connection with their sale or distribution.

EPA and DEC both subject pesticidal public health claims to heightened scrutiny and have indicated concern about the recent proliferation of products claiming to protect consumers against the Zika virus.  Manufacturers and distributors of any product making or implying claims to protect consumers against Zika or other diseases carried by pests must ensure full compliance with Federal and State legal requirements and ensure that all advertising claims are accurate and substantiated at all times, irrespective of the active ingredient used in the product. 

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 221

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About this Author

Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal...

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Alan J. Sachs Regulatory Attorney Beveridge & Diamond Washington, DC
Principal

Alan’s practice focuses on the wide range of regulatory issues faced by the global agriculture, food, biotechnology, and bioenergy industries.

Practicing environmental law provides him with daily opportunities to use his legal skills and training to help clients overcome often extremely technical business and regulatory challenges in order to ensure compliance with applicable environmental requirements.

He advises numerous Forbes Global 2000 companies on the legal and regulatory requirements associated with both domestic and foreign production, and the import, export, and distribution of pesticides, industrial biocides, and treated commodities and products. In every matter, Alan strives to meet and exceed his clients’ expectations by providing them with the environmental legal analysis and solutions they need to achieve their objectives.

Alan’s practice includes all aspects of the U.S. Environmental Protection Agency’s (EPA) regulation of pesticides, including the manufacture, import, distribution, labeling, registration, and use of all types of consumer and agricultural pesticide products under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). As part of his FIFRA legal practice, Alan frequently supports the data rights objectives of Beveridge & Diamond’s pesticide clients; advises clients on EPA enforcement matters; and prepares data licensing agreements, product distribution agreements, and other related contracts.

Beyond FIFRA, Alan advises pesticide manufacturers on issues arising under other relevant laws—including the Federal Food, Drug, and Cosmetic Act (FFDCA); the Plant Protection Act (PPA); the Endangered Species Act (ESA); the Toxic Substances Control Act (TSCA); and the Freedom of Information Act (FOIA)—and provides guidance in connection with pesticide requirements and data protection issues in the European Union and other jurisdictions around the world. Alan also counsels clients on the regulation of antimicrobial, biocide, and biostimulant products under FIFRA and other regulatory regimes, as well as the coordinated regulation of genetically engineered plants, animals, and insects by EPA, the U.S Food and Drug Administration (FDA), and the U.S. Department of Agriculture (USDA).

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