FIFRA and Fines

On March 5, 2008, the US EPA announced that it had fined the company IOGEAR for "for selling unregistered pesticides and making unproven claims about their effectiveness."  The fine, reached via settlement, was for $208,000, and IOGEAR has since removed its pesticide claims from the offending products.

IOGEAR was selling two wireless mouses (mice?) and a wireless mouse/keyboard combination claiming that the nano-coatings killed germs and pathogens.  While the nano-coating remains unspecified (although the quote below indicates its nanosilver), the violation was pursuant to the Federal, Insecticide, Fungicide, and Rodenticide Act (FIFRA).  EPA's representative, Katherine Taylor, associate director of the Communities and Ecosystems Division at EPA’s Region 9 was quoted a saying, “We’re seeing far too many unregistered products that assert unsubstantiated antimicrobial properties...Whether the claim involves use of an existing material such as silver, or new nano technology, the EPA takes these unverified public health claims very seriously. Consumers should always follow common-sense hygiene practices, like washing hands frequently and thoroughly.”

It was really only a matter of time until the fines began.  We've seen many examples, check out yesterday's post for the easy links, of products claiming antibacterial and microbial claims go unregistered, and it appears that it finally wore down EPA's patience.  FIFRA is pretty clear that in order to make "pest killing" claims, the product must be registered so that EPA may be satisfied that the product does not pose an unreasonable risk to consumers.  Now that nanotechnology is getting more of the spotlight, I suspect we'll begin to see more enforcement actions like this to ensure consumer products are complying with applicable legal requirements.

UPDATE: First EPA Regulation of Nanotechnology?

Since first being reported in the Washington Post, and relayed here, more information concerning EPA's proposed regulation of nanosilver under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) has been uncovered.

As initially reported, the EPA's Office of Pollution Prevention reversed its course from earlier statements, and ultimately decided to regulate nanosilver under the FIFRA.  EPA reasoned that because manufacturers were producing products containing nanosilver as a method of killing bacteria, such uses were properly the province of the FIFRA as a pesticide.  Nanosilver is found in several products available today, including food containers, shoes, air fresheners, and bandages.  The concern is that the silver may pose a threat to aquatic systems as a bio-accumulative toxin.

Upon further research into EPA's announcement, it has been determined that EPA plans to issue a Federal Register notice that will explain the requirements for using nanosilver as an anti-bacterial agent.  Greenwire is reporting that the rule will be issued "within the next few months."  It is expected that those falling under this new rule will need to show that the nanosilver additive will not pose an environmental risk when placed into commerce.  However, as reported in the November 23, 2006 Washington Post article, EPA states that to be subject to FIFRA regulation, there has to be a claim that the product will "kill pests" in order for it to be a pesticide.  Consequently, products containing nanosilver may not be subject to FIFRA regulation absent a claim that the product kills bacteria, viruses, or the like.

The most important piece of information to come out of this subsequent research is the knowledge that EPA will indeed begin regulating nanomaterials, and plans to do so soon.  Silver is already regulated under the FIFRA in several products as a pesticide, so for EPA to regulate forms of nanosilver is potentially a new step.  The Federal Register notice should provide additional details as to how nanosilver will be regulated under the FIFRA and the procedures EPA will use in determining which uses are subject to regulation and which are not.  It is important to note that nanomaterials are not currently regulated, however it appears as though regulation is now imminent, starting with nanosilver in anti-bacterial uses.