“Green” Claims and Pesticides: EPA Publishes FIFRA Guidance on ​“Absence of Ingredient” Claims for Bleach, Phosphates and DEET

In the final hours of 2023, our colleagues over at Ad Law Access highlighted the numerous regulatory bodies that spent the year clamping down on ​“greenwashing” advertising practices – such as the Federal Trade Commission’s workshop on ​“recyclable claims” and California’s carbon disclosure laws – predicting that regulators and consumers will increasingly scrutinize advertising claims alleging environmentally sound business practices and products.

On February 1, 2024, the U.S. Environmental Protection Agency (“EPA” or ​“the Agency”) joined the fray by publishing a 14-page guidance document titled Guidance on ​“Absence of an Ingredient” Claims Associated with Federal Insecticide, Fungicide, and Rodenticide Act Regulated Products. The document officially issues guidance on how the Agency will evaluate ​“absence of ingredient” claims for pesticide products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Under FIFRA, pesticides must be registered with the EPA before they can be sold or distributed in the United States. To register, applicants are required to meet certain product labeling standards, including the prohibition that a pesticide not be misbranded. A pesticide is misbranded if its labeling contains a statement, design, or graphic representation that is false or misleading.

Under this new Guidance, EPA is advising companies how it will evaluate labeling claims that a pesticide product does not contain an ingredient, and notes that it will do so on a ​“case-by-case” basis exclusively. The Guidance reiterates that ​“false or misleading” ​“absence of an ingredient” claims are not permissible under FIFRA, before going into specific claims proposed by applicants for three common pesticide additives: sodium hypochlorite (commonly referred to as ​“bleach”), phosphates, and N,N-Diethyl-meta-toluamide (“DEET”).

Specifically, the Guidance represents that the Agency is aware that ​“bleach-free” claims are not commonly viewed as safety claims and are therefore not misleading in certain products because it indicates to consumers that bleach is in the product so as not to apply it to items that bleach may damage (e.g., clothing). For certain pesticide products however, bleach added to certain chlorinated chemistries break down into free available chlorine, which performs the pesticidal activity. Thus, the Agency believes ​“absence of bleach” claims generally would be false or misleading on labeling certain pesticide products that contain bleach or bleaching agents. A full list of these chemistries can be found on Page 7 of the Guidance.

The Guidance also shares that EPA will generally not consider ​“phosphate-free” claims to be misleading when used on pesticide products because phosphates are considered ​“inert” ingredients with no pesticidal purpose.

For ​“DEET-free” claims, EPA first acknowledges that consumers may want to have information about whether a pesticide contains DEET for reasons unrelated to safety (e.g., odor, potential damage to elastic on clothing items, rubber, plastic, or vinyl, etc.). Because of this, EPA will generally not consider specific ​“DEET-free” claims to be false or misleading when accompanied with a qualifying statement such as ​“Not a safety claim.”

The Guidance also provides information on how registrants may add these claims to their product’s labels.

The new EPA guidance is just the latest indication that federal (and state) regulators are increasingly scrutinizing all sorts of environmental claims - especially claims that relate to chemical content (or absence of certain chemicals) - that aim to make products or companies appear to be more ​“green.”