Retailers, Coronavirus and Antimicrobial Claims

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As we approach what should be a bustling in-person holiday shopping season amid lingering coronavirus issues, physical retailers are keen to provide customers with a clean and healthy shopping environment. Additionally, buyers continue to have an increased interest in products with antimicrobial benefits, so retailers are likely to offer products with antimicrobial characteristics. However, both of these areas can be fraught with traps for the unwary, so below are some key considerations to keep this holiday season cheerful and bright.

Addressing first the desire to provide a clean and healthy shopping environment, retailers are keen to communicate to customers the sanitation, disinfection and other antimicrobial actions they take in their stores. However, such a statement must be closely analyzed before it is deployed. Antimicrobial pesticides (eg., disinfectants and disinfectants) are regulated by the Federal Law on Insecticides, Fungicides and Rodenticides (FIFRA). The application of FIFRA is carried out by the Environmental Protection Agency (EPA). FIFRA applies to both manufacturers of antimicrobial pesticides and applicators of antimicrobial pesticides. In other words, if a retailer applies antimicrobial pesticides in their physical operations, that conduct is regulated by FIFRA. With more and more companies making statements about the benefits of antimicrobial pesticides and their application, the EPA has become more focused on applying FIFRA in this area, and retailers are on its radar. Violations of FIFRA result in potentially severe civil penalties (eg.., large fines, stoppages) and even criminal liability. Not wanting to get a proverbial lump of coal for the holidays, what can retailers do to avoid holding FIFRA liable for their well-meaning actions?

Whether it’s on gift boxes or FIFRA regulated pesticides, labels matter. Indeed, there is a saying at FIFRA that “the law is the label”. What does it mean? A little background: Manufacturers of pesticides regulated by FIFRA must Register their products with the EPA, a complex and factual intensive process that results in the product carrying specifically approved “claims” and instructions, which appear on an often heavily negotiated contract label associated with the product. The EPA provides a public online database for registered pesticide labels. These claims can include the parasites killed (virus, bacteria, etc.), the degree of destruction (99.99%, sanitizer, disinfectant) and the types of surfaces (soft, hard). In addition, the label also includes specific application instructions to support the claims made. It is typical that the application instructions are different (residence time, amount) depending on the type of claim made (soft surface, hard surface). Additionally, for specific coronavirus claims, check the EPA’s N list to make sure the EPA expects the product to kill the coronavirus. So if the retailer wants to avoid being on the “naughty list”, he must follow the label and make claims that are consistent with the label. In other words, failure to follow label directions or make claims that are not supported by the label may engage the potential liability of FIFRA. So, particularly if you are looking to make complaints with customers about your antimicrobial actions during the holiday season, it would be wise to consult the Labels FIFRA registered products that your company uses, make sure your complaints are supported by the label, and make sure that your cleaning staff perform the correct label application instructions for the specific product and the claim made.

As a retailer, you should also keep antimicrobial regulations in mind for your product offerings. While FIFRA regulates products that make pesticide claims, including devices such as home air purifiers claiming to have an antimicrobial benefit, the Federal Food, Drug and Cosmetic Act (FD&C Act) , enforced by the Food and Drug Administration, applies to disinfectant devices, medical air purifiers and disinfectants intended for use on human skin. Of course, traditional Federal Trade Commission (FTC) Act considerations regarding false or misleading market information also apply, as it is possible to land on the naughty listings of multiple agencies. So how can a retailer put a cute holiday bow on their antimicrobial product offerings this holiday season? Here are some ideas for a diligent wish list:

  • When choosing and offering products, consider whether the product makes an antimicrobial claim and, if so, what potential regulatory laws apply.

  • Check whether the product manufacturer has registered or obtained the appropriate regulatory approval for the product and the product claims.

  • If applicable, look for a clause that creates an obligation for the supplier or manufacturer to notify you of any relevant changes to an antimicrobial claim, registered label, or approval status of a product.

  • Include transfer of liability and indemnification provisions in supplier contracts for costs or expenses incurred as a result of any violation, or alleged violation, of applicable FIFRA, FDA, or FTC laws.

Hopefully after reading this article if the freshly returned Santa Claus at the mall tells you his sleigh has been disinfected to kill all germs and is filled to the brim with anti-coronavirus air purifiers and UV lamps, tell him your store is running out of cookies and milk.

© 2021 Bradley Arant Boult Cummings LLPRevue nationale de droit, volume XI, number 336


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