EPA Will Be Active in FIFRA Enforcement on Antimicrobial Pesticides

January 18, 2024
Garrett D. Trego, Esq.
MGKF Special Alert - 2024 Federal Forecast

A “pesticide,” as defined for regulatory purposes under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) is anything intended to mitigate a pest, including microbial pests like bacteria and viruses.  Manufacturers, importers, distributors, and retailers must be aware that if promotional materials suggest a product will kill, limit, or otherwise control such a pest, EPA and state environmental or agricultural agencies are likely to assert jurisdiction.

The range of products potentially subject to FIFRA regulation continues to surprise some, particularly as EPA’s enforcement of these regulations increased with the pandemic.  Companies surprised by enforcement of these regulations are often further disappointed to discover the significance of the civil penalties associated with alleged violations of the statute.  EPA continues to negotiate significant settlements in this area, with no sign of slowing down in 2024.   

With respect to rulemaking, EPA has proposed new rules on treated seed and treated paint products, often already subject to FIFRA regulations but exempt from certain requirements through the “treated article” exemption in 40 CFR 152.25(a).  The new rule is targeted at increasing awareness of potential risks associated with the pesticides used to treat these products by ensuring that warnings associated with the underlying pesticides are passed on with the final product.  Comment on this rule closed in December 2023, and a final version may be promulgated in 2024.