PPB November 2020

antimicrobial pesticide which is registered for treating the specific article or substance. Having an up-to-date bill of materials that clearly identifies all surface coatings and additives allows a manufacturer to quickly identify antimicrobials added to the product or the surface coating. Independent, third-party laboratory testing for claimed properties provides validation of those claims. The registration and labeling of an antimicrobial pesticide intended for incorporation into a treated article or substance must include specific listings of articles or substances that may be treated. The EPA has rejected broad general-use claims, such as “the preservation of hard surfaces, plastics, adhesives or coatings” for registering antimicrobial pesticides. Instead, the agency requires distinct listings such as “toys,” “kitchen accessories” and “clothing articles” to be reflected in the antimicrobial product’s registration, labeling andmarketing collateral as a prerequisite for incorporation of the antimicrobial into an article or substance exempted from FIFRA registration under 40 CFR 152.25(a). Manufacturers are encouraged to request an updated antimicrobial product registration from your vendors. FIFRA Is A Claims- Based Regulation. Who Enforces It? The way product claims are phrasedmay determine your company’s compliance with FIFRA and other regulatory requirements. If an inanimate product is depicted in any way as possessing antimicrobial pesticide qualities, enforcement actions may be taken by the EPA. Companies, though, have claimed "antibacterial" and "antimicrobial" qualities are extended to users of their products in commercial settings for a range of products including socks, shoes, shower curtains, sponges, face masks, hospital gowns, cutting boards, toys and so forth. The Federal Trade Commission (FTC) regulates false and deceptive claims. The agency’s powers are limited in that it must demonstrate a “substantial interest” in limiting specific claims, that the restrictions imposed directly advance the asserted interest and that restrictions are reasonable. With a proliferation of antimicrobial-treated products in the late 1990s, the FTC, in collaboration with the EPA, determinedmanufacturers must establish the degree and duration of a protection whenmaking a claim related to antimicrobials. All labels, advertising andmarketing claims must be accurate and scientifically substantiated. In a July 17, 1998 letter from the FTC’s Division of Advertising Practices on the “treated articles” exemption, the FTC stated: “The Commission staff notes, as has EPA, the recent proliferation of consumer products containing ‘antibacterial’ or ‘antimicrobial’ agents, accompanied by advertising and labeling claims about the efficacy of those agents in providing protection against bacteria or germs. We support EPA's judgment that, inmany instances, claims concerning the antimicrobial or antibacterial properties of such products imply a public health benefit, i.e., that the control or elimination of germs and bacteria helps protect users against disease, rather than simply preserving the product itself against rot, deterioration, mold, or mildew. This implication is likely to be particularly strong for products and in circumstances where consumers are not concerned about microbial damage to the product itself, but instead have generalized concerns about the spread of disease-causing germs.” When the consumer is likely to be swayed by product claims with the implications of efficacy for human health or the qualifying statement appears to contradict the claim and confuse consumers, the FTC is likely to issue a warning to the manufacturer. If a complaint is issued and found to have merit, further violations can result in a civil penalty of $16,000 for each occurrence. Conclusion Before you consider that face mask treated with a registered antimicrobial to prevent the growth of odor-causing bacteria on the mask and claiming the face mask has antimicrobial properties that may be effective in preventing the spread of coronavirus, consider the science available about the antimicrobial. What does the antimicrobial do? How long does it last? Is the claim likely to be misunderstood by a consumer focused on keeping their family, friends and community safe in the current environment? Knowing your products in order to make accurate claims is the surest way for ensuring safe products. D.E. Fenton was most recently executive director at Quality Certification Alliance. After 12 years, the organization concluded its mission and wrapped up operations on August 1. The Federal Trade Commission (FTC) regulates false and deceptive claims. 68 | NOVEMBER 2020 | THINK