The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is the major U.S. law regulating pesticides. The U.S. Environmental Protection Agency (EPA) regulations implementing FIFRA can be found at 40 CFR Parts 152 to 180. Under FIFRA, the EPA is responsible for registering or licensing pesticide products for use in the United States. Registered pesticides have labels that are approved by the EPA. These approved labels have the force of law, and any use that is not in compliance with the label directions and precautions may be subject to civil and/or criminal penalties.
Retailers that purchase, store, sell, or dispose of pesticides must be aware of registration, labeling, and other pesticide management requirements. Pesticides are defined broadly and include products that everyone recognizes as a pesticide, such as wasp and hornet killers. However, pesticides also include such products as repellants, antimicrobial dish drainers, and carpet sanitizers. Some stores may be selling pesticides and not realize it.
The EPA has brought a number of enforcement cases against retailers for selling pesticides that do not comply with FIFRA requirements.
Note: This fact sheet applies to federal standards. Some states require registration of pesticides and devices in addition to EPA registration. Also, some states may require registration of pesticides that the EPA does not regulate, or they may have other regulations that apply to pesticides or pesticide devices. Check with your state pesticide regulatory agency. The National Pesticide Information Center (NPIC) lists contact information for the state agencies that regulate pesticides.
The EPA defines "pesticides" as any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or desiccant (used to dry up plant tissues).
A product is likely to be a pesticide if the labeling or advertising:
Types of Pesticides
Types of pesticides that retailers will commonly handle include:
Conventional pesticides, which are generally synthetic materials that directly kill or inactivate the pest. Think of bug killers and rat poison.
Biopesticides, which are certain types of pesticides derived from such natural materials as animals, plants, bacteria, and certain minerals. For example, products containing the active ingredient citronella or black pepper oil are examples of biopesticides.
Antimicrobial pesticides, which are substances used to destroy or suppress the growth of harmful microorganisms, whether bacteria, viruses, or fungi, on inanimate objects and surfaces. Antimicrobials that are antiseptics and germicides, which are used to prevent infection and decay on humans and animals, are regulated by the Food and Drug Administration. Think of the difference between disinfectant wipes meant to clean countertops and baby wipes.
Antimicrobial pesticides that retailers will commonly carry include:
Sterilizers are another type of antimicrobial pesticide that are commonly found in hospitals and other healthcare settings.
Minimum-risk pesticides have active ingredients, such as cloves and mint oil that, alone or in combination, pose little risk. Minimum-risk pesticides do not require EPA registration as long as six conditions are met:
"Treated articles" are articles or products that are treated with an antimicrobial pesticide to protect the articles or products. These products are exempt from FIFRA registration requirements if the only purpose of the added pesticide is to protect the item and the pesticide is registered for that specific use. This "treated articles exemption" is in 40 CFR 152.25(a). Examples of this exemption are paints treated with a pesticide to protect the paint coating and wood products treated to protect the wood against insect or fungal infestations. However, many consumer products have been treated with antimicrobial pesticides, and there has been confusion about when the treated articles exemption applies. The EPA provided guidance in Pesticide Registration Notice 2000-1.
The treated articles exemption is for a non-public-health use of a pesticide that is intended to protect only the treated article. Articles or products that make a public health claim that goes beyond the preservation of the treated article must be registered as pesticides. Public health claims include statements or implications, including the name of a product, or that the product will protect people or pets from germs, bacteria, fungi, or viruses. An example of a public health claim is that a product will control allergens by controlling or removing mold or mildew.
Even though a treated articles exemption product does not carry an EPA pesticide registration number, it must have a clarifying statement indicating that the product contains a preservative such as an insecticide or fungicide, built in or applied as a coating to protect the product.
Examples of treated products that the EPA says have made implied or explicit public health claims are cutting boards, kitchen sponges, high chairs, cat litter, toothbrushes, and children's toys. Be careful if there are public health claims on treated products like these, as they may need to be registered under FIFRA. If there is not an EPA registration number on a treated product that is making an antimicrobial claim, it should contain a statement to the effect that the antimicrobial properties in the product are meant to protect the product and do not protect users. The claim and qualifying statement on the label should be no more prominent than the other descriptions of the product.
Pesticide devices are products meant to kill, control, repel, or mitigate pests that work by physical means, such as electricity, light, or mechanics (excluding firearms), and don't contain a pesticide substance or mixture. Although many pesticide devices do not have to be registered, they must be made in a registered pesticide-producing establishment. An EPA establishment number must be on the label, but a product registration number is not required.
Like pesticides, the label for pesticide devices may not contain any false or misleading statements or graphics, including about the composition of the device or its effectiveness.
Products, such as flyswatters or rat or mouse traps, that depend more on the user than the device itself for pest control or that operate to trap animals with backbones are not regulated under FIFRA.
Pesticide application equipment sold separately from the pesticide is not considered a device or a pesticide.
The EPA provides a good example of how similar products are considered differently under FIFRA:
A bait station used to trap rodents or insects is considered pesticide application equipment and is not regulated by FIFRA. If the same application is sold with toxic bait, it is regulated under FIFRA as a pesticide product and must be registered. But if the bait station is sold with a sticky trap inside, it is regulated under FIFRA as a pesticide device because it achieves pest control by physical means.
Examples of pesticide devices that may be found in retail stores include ultraviolet lights used to kill fungi, bacteria, or viruses; bug zappers; flypaper; ground vibrators, such as mole thumpers; air filters; and water filters that do not include a substance to disinfect the water. If a device is sold together with a pesticide (as in a kit), the product may need to be registered with EPA.
Know Your Suppliers
Retailers that have the responsibility for purchasing pesticides for their retail operation should make it a priority to deal with reliable suppliers.
Many retailers depend on their suppliers (manufacturers, importers, and/or wholesalers) to provide products that comply with product laws. However, under FIFRA, the retailer may be subject to enforcement for selling noncompliant products even if the supplier indicated that the product was compliant. Given the potential risk to retailers, it is important for a retailer to understand the applicable regulations and use reliable suppliers.
If you change suppliers or brands, make sure that the products you buy are registered and labeled appropriately.
Check Registration and Labeling
Retailers should make sure that:
Be Label Conscious if You Are a Supplemental Distributor (Private Labeler)
Under FIFRA, a company may market a product already registered with the EPA by another company (the "original registrant") under its own company or brand name without a separate registration. Such distribution and sale is termed "supplemental distribution," and the product is referred to as a "distributor product."
Labeling associated with the distributor product must be the same as that of the basic registered product. The distributor, also known as a "sub-registrant," may not make additions to the original registrant's basic product label (e.g., add claims, additional sites, or pests). According to the EPA, such unapproved product labeling can "lead to misuse and misapplication as well as pose significant risks to the users who rely on product labels to inform them about proper and safe pesticide use."
Under FIFRA, the distributor is considered an agent of the registrant for all intents and purposes, and both the registrant and the distributor may be held liable for violations pertaining to the distributor product.
Illegal pesticides. Any pesticide that you sell must be registered with the EPA. If a product claims to kill or repel pests in any wording or way and does not have an EPA registration number, it is illegal to sell it. You can be fined a civil penalty of up to $7,500 for each sale of an illegal, unregistered pesticide.
Common illegal pest products include mothballs, pet products, a product called "Tres Pasitos" that is illegally imported from Mexico and Latin America, and certain antibacterial products.
Unregistered pesticides. There are certain instances when an unregistered pesticide or a pesticide with a registration that has been canceled or suspended may be distributed, sold, or transferred. The circumstances that would be applicable to retailers are:
Importing PesticidesIf you are in charge of importing pesticides for your company, you must submit Form 3540-1 (Notice of Arrival (NOA) of Pesticides and Devices) to the EPA prior to the arrival of your products in the U.S. The Agency will determine the appropriate disposition of the product and return the NOA form to you as the importer. You must then present the NOA form to the U.S. Customs and Border Protection (CBP) at the port of entry. The CBP will not permit entry without a completed NOA.Buying GreenExtended Producer Responsibility (EPR) laws target specific product classes and put responsibility on the manufacturer for their end-of-use disposal or recycling. There is an effort by groups such as the Product Stewardship Institute to have retailers be part of EPR programs in order to better manage pesticide manufacture, use, storage, and disposal. One way to avoid EPR laws and the problems associated with pesticide management is to try to sell greener products. See if your suppliers are involved in or interested in being part of the Green Suppliers Network, a collaboration between the EPA and industry. The EPA also has advice for retailers on how buying green products can make a difference for your business on the Greener Products Portal. The EPA's Safer Choice Initiative can help you find greener products. There is also a pilot program under Design for the Environment for Pesticides that would put the Design for the Environment Program (DfE) logo on pesticide labels. This would help retailers (and consumers) find products that are more toward the green end of the pesticide spectrum.
Pesticide Container and Containment RuleThe Pesticide Container and Containment (PCC) rule under FIFRA covers container design and procedures for transferring pesticides. The EPA provides information on the rule and PCC Regulations at a Glance. The PCC sections most likely to apply to retailers are:
Refillable containers. If you repackage a pesticide, you must comply with the requirements for stationary tanks and repackaging. Also, you are indirectly subject to the requirements for portable refillable containers (found at 40 CFR 165.45(e)). The American Agronomic Stewardship Alliance provides a fact sheet and checklist for retail facilities about portable refillable containers. The stationary tank requirements (found at 40 CFR 165.45(f)) apply to tanks with capacities of 500 gallons (liquids) or 4,000 pounds (dry) or greater and that are stationary (i.e., fixed or in place ≥ 30 days).Repackaging pesticide products. Retailers that repackage pesticide products must be registered with the EPA as a producing establishment. They must obtain from the registrant, and keep on file, a procedure to clean refillable containers and a description of acceptable containers that meet the requirements for stationary tanks and portable refillable containers. When you are repackaging, you must follow inspection, cleaning, and other requirements found at 40 CFR 165.70. Containment structures. Retailers that repackage agricultural pesticides and whose principal business is retail sale (i.e., more than 50 percent of total annual revenue comes from retail operations) must meet the PCC requirements for containment structures. These requirements, which can be found at 40 CFR 165.80 to 165.97, include secondary containment, inspections, and recordkeeping.Container Repair Interim PolicyEPA's Container Repair Interim Policy establishes a process for pesticide retailers and distributors, under certain circumstances, to repair minor damage to pesticide containers. The retailer must provide a proposal to the EPA for their container repair program, which the EPA considers on a case-by-case basis. The interim policy has very specific requirements, including an application and review process to ensure the integrity of the label, the product, and the container of the repaired products. Any repairing of pesticide containers is considered "production," so a retailer that wants to put in a proposal to repair minor damages to containers must be registered with the EPA as a producing establishment.Label integrity. When repairing containers, you must maintain the integrity of the label. If part of the label is missing or if a patch repair covers part of the label, the pesticide will be considered "misbranded." Product integrity. A proposal for a pesticide container minor repair program must contain procedures that will ensure the integrity of the pesticide product. There must be no appreciable loss of content or change in net contents as seen on the label. Of particular importance is to ensure that no foreign substances are introduced that alter the composition of the product as it is described in the confidential statement formula section of the label.Container integrity. The proposal for a minor repair program must also contain procedures that will maintain the integrity of the container. The strength of the container in the area where the patch or repair is applied may not be compromised.
General BMPsRetailers should follow a few best management practices (BMPs) when selling pesticides:
Marketing TacticsMake sure that your advertising and in-store promotions follow FIFRA requirements.
Returned PesticidesIf a customer returns a pesticide, pay special attention to determine whether it can be resold. If the product has been opened and used (i.e., some of the product is missing), or if the label is damaged or obscured, the product should not be resold. Do not attempt to attach new labels or repair pesticide containers unless you are registered with the EPA as a pesticide producing establishment and have an approved minor repair program under EPA's Container Repair Interim Policy.
Recalled, Suspended, or Canceled PesticidesThe EPA can cancel a pesticide registration if it deems that the existing risks are unacceptable. The Agency can also cancel a pesticide registration for reasons unrelated to risk, such as nonpayment of maintenance fees. The EPA can also suspend a pesticide registration. The registrant can no longer produce or sell the pesticide. The EPA maintains a list of suspended pesticides.In the case of a recall, retailers may be required to notify the EPA and state and local officials of the quantities and locations of the suspended or canceled pesticides in their possession.Stop, Sale, Use, or Removal OrdersIf the EPA has canceled or suspended a pesticide or pesticide device, the Agency can issue a "stop, sale, use, or removal order" (SSURO). That means that retailers can no longer sell the pesticide unless the order specifies otherwise with certain conditions. Hazardous Waste PesticidesSome pesticides may be considered hazardous waste. Certain hazardous waste pesticides can be collected under the streamlined collection standards for universal waste. Pesticides that qualify as universal wastes must be recalled pesticides that have been suspended or cancelled or unused pesticides that are part of a waste pesticide collection program. Check the Center for Retail Compliance (CRC) guidance for Hazardous Waste for information about managing hazardous waste and the universal waste option.Note: States are not required to adopt the federal universal waste standards, so be sure to check with your state to see if you can manage waste pesticides as universal waste and if the state standards are stricter.
FIFRA recordkeeping requirements that concern retailers involve RUPs and retail refilling establishments that repackage agricultural pesticides. States may have additional recordkeeping requirements that apply to retailers.
RUPs. Retailers that sell RUPs must keep records for each sale of an RUP to a certified applicator or to an uncertified person for use by a certified applicator for two years.
Refilling establishments that repackage agricultural pesticides. Retailers that are refilling establishments and repackage agricultural pesticides must keep records related to containment structures and pesticide containers for three years.
The EPA has brought a number of cases against retailers for FIFRA violations. These offenses include selling or distributing:
Other unlawful acts that could apply to retailers include:
When enforcing FIFRA, the EPA regards the company as liable for the acts of its employees.
Retailers that violate any provision of FIFRA face a civil penalty of up to $7,500 for each violation. Retailers that knowingly violate a FIFRA provision face a criminal penalty of up to $25,000 and/or a prison sentence of up to one year.
What to Expect from EPA Inspections
Under FIFRA, the EPA and state agencies can inspect, at reasonable times, any establishment or other place where pesticides or devices are held for distribution or sale. Inspections can be broad and may include obtaining samples of any pesticides or devices, packaged, labeled, and released for shipment, and samples of any containers or labeling for pesticides or devices, or any place where any pesticide is being held.
EPA's FIFRA Inspection Manual is an inspection tool for agency officials conducting FIFRA inspections. It's useful for those subject to FIFRA regulations because if you know what inspectors are supposed to look for, you can be better prepared for inspections.
We'll take a look at what can be expected from four types of EPA inspections that could affect retailers.
Marketplace inspections are normally conducted where pesticides are sold. They are meant to ensure industry compliance with product registration, formulation, packaging, and labeling requirements. They also help the EPA determine whether procedures for the disposal and storage of pesticides, pesticide containers and pesticide-related wastes are being followed.
In general, marketplace inspections are usually scheduled by seasonal demands. For example, during the growing season, feed, seed, and fertilizer outlets are sources of agricultural pesticide products. Spring and summer are deemed good seasons by the EPA to inspect for swimming pool and spa products. In winter, urban outlets may be surveyed for household pesticide products. Additionally, inspections might be triggered at any time by a citizen complaint or tip.
When EPA inspectors conduct marketplace inspections, they may be looking to:
Inspectors who conduct a marketplace inspection at your store will most likely ask to look at any of the following applicable records:
RUP Dealer Inspections
RUP dealer inspections are conducted to determine compliance with FIFRA recordkeeping requirements regarding sales and distribution of RUPs and to ensure that RUPs are sold only to certified applicators or noncertified persons for application by a certified applicator specifically certified for that RUP.
'For Cause' Inspections
The EPA may conduct a "for cause" pesticide use inspection in response to suspected pesticide misuse incidents in order to develop the evidence to support a FIFRA enforcement action. For-cause inspections may be initiated by a complaint, a damage report, a referral or tip, or a known or suspected noncompliance.
In a for-cause use inspection, the inspectors may visit a number of sites, interview various persons, and collect pesticide samples. Pesticide dealers and distributors, including retailers, are among the people that may be questioned in a for-cause inspection.
Bulk Repackaging Inspections
If you are a retailer involved in bulk repackaging, be aware that the EPA sees a growing trend for pesticides to be shipped and held in bulk quantities and has encouraged inspectors to inspect establishments that handle bulk pesticides.
Most bulk establishments handle agricultural herbicides; however, other industries use bulk quantities of chemicals, such as sodium hypochlorite and quaternary ammonium disinfectants. In some cases, a bulk amount could be a very small quantity (e.g., certain herbicides).
In addition to documentation, like labels and invoices, inspectors will also look at berms, pads, and other containment structures to note conditions and capacity verifications. They will visually inspect containers and request records of container maintenance.
They will also check the labeling of containers and whether the registrant of the product provided the refiller/repackager with container labels for each product produced/refilled.