Member Article

Amidst growing concerns regarding the spread of the novel coronavirus and COVID-19, disinfectants and cleaners falsely claiming to prevent infection from the virus have started to infiltrate U.S. markets. In light of the widespread shortage of hand sanitizers, latex gloves, and face masks brought about by panic-buying in response to the outbreak, many Americans have fallen prey to these dupes. So much so that, according to a recent New York Times article, U.S. EPA has threatened to take legal action against the manufacturers and sellers of such dubious products.

The sham products targeted by EPA include a necklace, known as Virus Shut Out, containing chlorine dioxide (a bleaching agent) that claims to sanitize the wearer, as well as a sticker called the Flu Virus Buster that claims to provide 30 days of protection against COVID-19.

The Federal Insecticide, Fungicide, and Rodenticide Act of 1996 (“FIFRA”) provides for the regulation of pesticide distribution, sale, and use. Under FIFRA, products claiming to kill or repel bacteria or viruses — such as Virus Shut Out and Flu Virus Buster — are considered pesticides.¹ Before manufacturers may sell pesticides in the United States, EPA must evaluate them to ensure that they meet federal safety standards, in order to protect human health and the environment. Notably, EPA grants a registration and/or license that permits the pesticide's distribution, sale, and use only after the company meets the scientific and regulatory requirements. In addition, FIFRA prohibits the sale or distribution of pesticides that are unregistered or misbranded,² as well as the sale or distribution of registered pesticides with claims that substantially differ from those allowed under the terms of their registration.

Encouragingly, EPA recently announced that it is expediting its review of requests from pesticide registrants pursuant to its "Emerging Viral Pathogens Guidance for Antimicrobial Pesticides" interim guidance, available here. This guidance provides a pathway for registrants to make claims in off-label communications that their registered disinfectants may be used against viral pathogens like the coronoavirus. However, the expedited review does not eliminate or alter the requirements of FIFRA.

A list of products registered by EPA qualifying for use against COVID-19 may be found through the following link, available here. Even if using EPA-registered products, users should follow the label directions for safe and effective use. Also bear in mind — contrary to the claims made by Virus Shut Out and Flu Virus Buster — that these products are intended for use on surfaces, not humans.

If you have any questions about environmental law, please reach out to one of Hanson Bridgett's Environmental Lawyers.

¹ The term “pesticide” means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer. 7 U.S.C. § 136, subd. (u).

² “Misbranded” as defined by 7 U.S.C. § 136, subd. (q), meaning the product's labeling lacks required elements such as warnings, directions for use, an ingredient statement, or includes false or misleading claims, etc.