As we approach what is anticipated to be a bustling in-person holiday shopping season amid lingering coronavirus concerns, brick-and-mortar retailers are eager to provide customers with a clean and healthy shopping environment. Moreover, shoppers continue to have heightened interest in products providing antimicrobial benefits, so retailers are likely to offer products having antimicrobial features. However, both of these areas can be fraught with traps for the unwary, so below are some key considerations to keep this holiday season merry and bright.
First addressing the desire to provide a clean and healthy shopping environment, retailers are eager to communicate to customers the sanitizing, disinfecting, and other antimicrobial actions that they are taking in their stores. However, any such statement should be closely analyzed before being deployed. Antimicrobial pesticides (e.g., sanitizers and disinfectants) are regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA enforcement is carried out by the Environmental Protection Agency (EPA). FIFRA applies to both manufacturers of antimicrobial pesticides and also to the applicators of antimicrobial pesticides. In other words, if a retailer applies antimicrobial pesticides in its brick-and-mortar operations, this conduct is regulated by FIFRA. With more and more companies making statements about benefits of antimicrobial pesticides and their application, the EPA has increased its focus on FIFRA enforcement in this area, and retailers are on its radar. Violations of FIFRA bring potentially hefty civil penalties (e.g., significant fines, stop-sale orders) and even criminal liability. Not wanting to get a proverbial lump of coal for the holidays, what can retailers do to avoid triggering FIFRA liability for their well-intended actions?
Whether on boxes of presents or FIFRA-regulated pesticides, labels are important. Indeed, there is a saying in FIFRA that "the law is the label." What does this mean? Some background: Manufacturers of FIFRA-regulated pesticides must register their products with the EPA, a complex and factually intensive process that results in the product carrying specifically approved "claims" and instructions, which appear on an often-heavily negotiated label associated with the product. The EPA provides an online public database for registered pesticide labels. Such claims can include the pests killed (viruses, bacteria, etc.), the degree of killing (99.99%, sanitizer, disinfectant), and types of surfaces (soft, hard). Moreover, the label also includes specific application instructions to support the claims being made. It is typical that application instructions are different (dwell time, amount) depending upon the type of claim being made (soft surface, hard surface). Also, for coronavirus-specific claims, check the EPA's List N to ensure that the EPA expects the product to kill the coronavirus. So, if the retailer wants to avoid being on the "naughty list," it must follow the label and make claims that are consistent with the label. In other words, failing to follow label instructions or making claims that are not supported by the label can trigger potential FIFRA liability. Thus, particularly if you are seeking to make customer-facing claims regarding your antimicrobial actions this holiday season, you would be wise to review the labels of the FIFRA-registered products your company uses, ensure that your claims are supported by the label, and ensure your cleaning staff is appropriately executing the label application instructions for the specific product and claim being made.
As a retailer, you should keep regulations of antimicrobial products in mind for your product offerings, too. While FIFRA regulates products carrying pesticide claims, including devices such as home air purifying devices 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 medical disinfectant devices, medical air purifiers, and sanitizers intended for use on human skin. Of course, traditional Federal Trade Commission (FTC) Act considerations regarding false or misleading information in the marketplace also apply, as it is possible to land on multiple agencies' naughty lists. So how can a retailer put a pretty holiday bow on its antimicrobial product offerings this holiday season? Below are some ideas for a diligent wish list:
- In choosing and offering products, consider whether the product is making any antimicrobial claim, and if so, which potential regulatory statutes apply.
- Review whether the product manufacturer has appropriate registered or obtained regulatory approval for the product and the product claims.
- When appropriate, seek a clause that creates a duty for the supplier or manufacturer to inform you of any relevant changes to a products' antimicrobial claims, registered label, or approval status.
- Include liability-shifting and indemnification provisions in supplier contracts for costs or expenses incurred as a result of any violations, or alleged violations, of applicable FIFRA, FDA, or FTC laws.
Hopefully, after reading this article, if freshly returned-to-mall Santa tells you that his sleigh has been disinfected to kill all microbes and is filled to the brim with coronavirus-preventing air purifiers and UV lights, you will tell him that your store is out of cookies and milk.