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In 2007 and 2008, a Milwaukee-based pesticide manufacturer was alleged by the EPA to have committed more than 2,100 violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) related to claims made about a restricted use pesticide intended to kill prairie dogs in several Great Plains states. The pesticide was classified as a restricted use pesticide due its potential to cause serious harm to nontarget animals, including endangered species.
The two types of violations included:
1. Advertising the product, which is highly toxic, on radio broadcasts and in print advertisement without identifying it as a restricted use pesticide; and
2. Selling the pesticide while making claims that were inconsistent with the label approved by the EPA, which the EPA said “undermined the instructions on the label and overstated the efficacy and safety of the product.”
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In the first case, according to FIFRA Section 12(a)(2)(E), which defines restrictions on advertising, any advertising of a restricted use pesticide must contain a statement of its restricted use classification. Moreover, the regulation also states emphatically that this pertains to “all advertisements,” including:
- Brochures, pamphlets, circulars, and similar materials offered at the point of sale or by direct mail;
- Newspapers, magazines, newsletters, and other material in circulation or available to the public;
- Broadcast media, such as television and radio;
- Telephone advertising; and
- Billboards and posters.
This requirement can be met by simply stating in print or verbally (depending on the medium) that the product is a “Restricted Use Pesticide” or by providing the terms of restriction.
In the second case, FIFRA Section 12(a)(1)(A) and Section 12(a)(1)(B) make it illegal to offer for sale any pesticide “if claims made for it as part of its distribution or sale differ substantially from any claim made for it as part of the statement required in connection with its registration under FIFRA section 3.” This prohibition includes advertisements “in any advertising medium” accessed by pesticide users or the general public.
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Also relative to advertising was the finding that between November 2009 and February 2010, the company’s website contained electronically available documents about two pesticide products containing 12 claims that were not approved or authorized by the EPA. These claims dealt with a variety of product attributes, including application effectiveness, cost per acre, weatherability, a favorable toxicity profile, reliability, and other similar statements.
The case was investigated by the EPA and state agricultural agencies in Colorado, Kansas, South Dakota, and Wisconsin. In March 2014, the company was assessed a civil penalty of $698,000 for 2,140 violations of FIFRA Section 12(a)(2)(E) and an additional $40,000 for 20 violations of Section 12(a)(1)(B). The total penalty totaled $738,000 and is the largest penalty ever imposed by an administrative law judge for FIFRA violations.