By Daniel Pessar (Harvard Law School ’20)[*]
Faced with the daunting challenges presented by the coronavirus pandemic, individuals and institutions are scrambling to acquire the tools and supplies necessary to prevent the spread of the virus and to take care of those in need. In order to support response efforts, federal, state, and local government agencies have been making changes to their standard operating procedures. Some agencies have been helping by suspending rules which might slow down the creation or distribution of critical resources. The U.S. Department of Transportation (DOT) has suspended certain freight transportation regulations for trucks moving essential supplies. The U.S. Food and Drug Administration (FDA) has made it easier to produce alcohol for hand sanitizer products. And the U.S. Environmental Protection Agency (EPA) has streamlined the process for approving disinfectants that can be used to safeguard against the spread of the coronavirus.
Given the time-sensitive nature of the coronavirus response, and the important role disinfectants play in that response, it is worth exploring why the EPA is involved in approving the use of cleaning products in the first place. This post will do just that.
The EPA is charged with overseeing pesticide registration, regulation, and enforcement and is the federal agency that administers the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Although most people understand the word pesticide to refer to insecticides—products used to destroy insects—it is actually a term with a broader meaning. Under FIFRA, a pesticide is
any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest
7 U.S. Code § 136(u)
And the term pest has a broad ranging definition under the law:
An organism is declared to be a pest under circumstances that make it deleterious to man or the environment, if it is… Any fungus, bacterium, virus, prion, or other microorganism, except for those on or in living man or other living animals and those on or in processed food or processed animal feed…
40 CFR § 152.5
Under FIFRA, the EPA looks not only at products that are designed with an anti-pest purpose in mind, but also at products that make pest-related claims. Thus, the EPA will not require compliance with pesticide regulations for cleaning products that might repel or mitigate the incidence of pests as long as there is no advertising that the product is useful as such. The law provides that
A product that is not intended to prevent, destroy, repel, or mitigate a pest, or to defoliate, desiccate or regulate the growth of plants, is not considered to be a pesticide. The following types of products or articles are not considered to be pesticides unless a pesticidal claim is made on their labeling or in connection with their sale and distribution:
(a) Deodorizers, bleaches, and cleaning agents…
40 CFR § 152.10
But even substances registered as pesticides are strictly regulated according to the information included on their labels. Among other requirements, federal law requires that every pesticide have the following statement displayed on its label:
It is a violation of Federal law to use this product in a manner inconsistent with its labeling.
40 CFR § 156.10(i)(2)(ii)
As a result, even using an insecticide against an insect not listed on the label constitutes a violation of federal law.
This is why the EPA is involved in approving cleaning products for use against SARS-CoV-2, the virus that causes the COVID-19 disease. Cleaning products making pesticide-like claims cannot be used against pests unless those pests are listed on the product label. Of course, the new SARS-CoV-2 virus is not listed on the labels of products purchased before the start of the pandemic nor on the labels of many products sold in stores today.
In order to fast-track the approval process, the EPA has created a list of products which have been approved for use against SARS-CoV-2 even though their label might not reflect that. But the next time you shop for cleaning products, look closely at the products with EPA registration numbers. They most likely make claims about their usefulness in destroying or cleaning viruses and bacteria in general and the human coronavirus in particular.
[*]Daniel Pessar is a third-year student at Harvard Law School. Before law school, he worked in the real estate investment industry for six years. He is the author of three books and numerous articles. He can be contacted at dpessar@jd20.law.harvard.edu.