Kelley Green Law

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

Joseph J. Green — Wed, 07 Feb 2024 00:00:00 -0500

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."

With TRI Reports due July 1, EPA Expands List of Reportable PFAS

Joseph J. Green — Sat, 24 Jun 2023 16:28:30 -0400

With the annual July 1 deadline for filing Toxic Release Inventory (“TRI”) reports right around the corner, on June 22nd, the U.S. Environmental Protection Agency (“EPA”) finalized the addition of nine more per- and polyfluoroalkyl substances (“PFAS”) to the list of chemical subject to the reporting program (starting with reports due next year - July 1, 2024 - for the 2023 reporting year).

The rule, originally proposed in January 2023, is part of a larger effort by the Biden Administration to effectuate their PFAS Strategic Roadmap and regulate the chemicals. EPA last updated the list of PFAS subject to the TRI reporting program in July 2022.

The additional nine PFAS were added pursuant to the Fiscal Year 2020 National Defense Authorization Act (“NDAA”), which sets forth several mechanisms by which additional PFAS can be added to the list of reportable chemicals. Pursuant to the NDAA, EPA must review confidential business information (“CBI”) claims before adding PFAS to the TRI list if the chemical is subject to a claim of protection from disclosure. After review, EPA determined that the following four PFAS are no longer confidential and thus added them to the TRI:

Alcohols, C8-16, γ-ω-perfluoro, reaction products with 1,6-diisocyanatohexane, glycidol and stearyl alc. (2728655-42-1);
Acetamide, N-[3-(dimethylamino)propyl]-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs. (2738952-61-7);
Acetic acid, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., 2-hydroxypropyl esters (2744262-09-5); and
Acetamide, N-(2-aminoethyl)-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., polymers with N1,N1-dimethyl-1,3-propanediamine, epichlorohydrin and ethylenediamine, oxidized (2742694-36-4).

Additionally, the NDAA automatically adds PFAS to the TRI upon the Agency’s finalization of a toxicity value. EPA finalized toxicity values for the following chemicals in December 2022, thus adding them to the TRI:

PFBA (375-22-4);
Perfluorobutanoate (45048-62-2);
Ammonium perfluorobutanoate (10495-86-0);
Potassium perfluorobutanoate (2966-54-3); and
Sodium perfluorobutanoate (2218-54-4)

Now, a total of 189 PFAS chemicals are subject to TRI reporting requirements. The addition of these nine PFAS is effective on January 1, 2023. Accordingly, facilities that manufacture, process or otherwise use any of these chemicals from that date forward must report releases and other waste management activities involving the substances for the 2023 reporting year (reports are due July 1, 2024). Hence, facilities should be tracking the use of these chemicals now. Required PFAS reporting for TRI Reporting Year 2022 is due on July 1, 2023.

Comments Due Soon on EPA Proposed Rule to Eliminate De Minimis Exemption for PFAS Reporting under the Toxic Release Inventory Program

Joseph J. Green — Fri, 20 Jan 2023 18:41:11 -0500

Comments are due February 3^rd on EPA’s proposed (and much anticipated) rule to eliminate use of the de minimis exemption for reporting on per- and poly-fluoroalkyl substances (“PFAS”) under the Toxic Release Inventory (“TRI”) program.

When the 2021 TRI data were published last year, those following the ever evolving world of PFAS were initially surprised to see such a small PFAS presence represented. Indeed, of the 75,890 total entries reported to TRI for all chemicals in 2021 (from nearly 21,000 facilities), EPA received merely 92 PFAS reporting forms on 46 different PFAS from 45 facilities. This information seems even more jarring considering that approximately 650 PFAS are currently in commerce (though only 172 are currently subject to TRI reporting) from about 120,000 facilities.

The reason for this gap was the vast employment of an aptly named “de minimis” exemption, a long-standing TRI policy that allows facilities to ignore amounts of substances in chemical mixtures when present at concentrations below 1% (or 0.1% for carcinogens). The Agency has signaled since 2020 that it planned to do away with the exemption for PFAS, and the December 5 proposal follows through on that pledge.

In announcing the rule, EPA asserted that it “would ensure that covered industry sectors and federal facilities that make or use TRI-listed PFAS will no longer be able to rely on the de minimis exemption to avoid disclosing their PFAS releases and other waste management quantities for these chemicals.”

By removing this reporting loophole, we’re advancing the work set out in the Agency’s PFAS Strategic Roadmap and ensuring that companies report information for even small concentrations of PFAS. We will make this information available to the public so EPA and other federal, state and local agencies can use it to help best protect health and the environment.
EPA Administrator Michael Regan

The Agency and several environmental organizations have argued in the past that the so-called “reporting loophole” of the de minimis exemption allows facilities to avoid reporting releases of potentially significant amounts of TRI-listed chemicals, thereby diminishing public trust, obfuscating transparency, and keeping community members in the dark about chemicals they believe to be hazardous to human health. The Sierra Club alongside other organizations, for example, have sued EPA claiming that the exemption is not statutorily permitted. The case, National PFAS Contamination Coalition, et al. v. EPA, is currently pending in the United States District Court for the District of Columbia.

However, as pointed out by the reporting community of industry stakeholders, the de minimis exemption helps make the TRI program more workable in practice by limiting the scope of substances for which reporting is required and not requiring companies to chase down information on miniscule amounts of substances present at trace quantities that generally pose little to no risk.

For certain chemicals of “special concern” – such as mercury, dioxins, lead, and other “persistent, bioaccumulative, and toxic” substances – EPA previously has eliminated availability of the exemption, as well as the TRI short-form (Form A) reporting option. The proposed rule would add PFAS to the category of chemicals of “special concern.”

In order to ensure that downstream users are informed of the presence of “special concern” chemicals in mixtures and products they purchase, the proposed rule also would make the exemption unavailable for supplier notification requirements.