For The Birds

31 Oct 2012

Last month, Scotts Miracle Gro Company agreed to pay millions of dollars in criminal fines and civil penalties for violations under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  The violations stemmed from Scotts’ illegal application of insecticides to its wild bird food products.  The insecticides, which are toxic to birds, were applied to protect the bird foods from insect infestation during storage.

Although the evidence in the Scotts case indicated that Scotts was well aware of its violations, and actively tried to cover them up, FIFRA is quite complex and frequently misunderstood.  In general, FIFRA applies to all products intended to repel any “pest.”  Even claims that a product has “antimicrobial,” “antibacterial” or “antiallergan” properties trigger application of the statute.  According to the Environmental Protection Agency (EPA), which oversees the sale and use of pesticides, FIFRA’s objective is to provide federal control of pesticide distribution, sale, and use. However, because FIFRA does not fully preempt state, tribal or local law, each state, tribe and local governments may also regulate pesticide use.

Under FIFRA, all pesticides (with minor exceptions) sold or distributed in the United States must be registered (licensed) by the EPA.  Before registering a new pesticide, or a new use for a registered pesticide, the EPA must first be reasonably certain that the pesticide, when used according to label directions, will not harm human health and will not pose unreasonable risks to the environment.  The application process, which is long and challenging, often requires the submission of extensive environmental, health, and safety data.  FIFRA also grants the states authority to issue special local needs registrations under certain conditions.  This allows a state to register a pesticide, which is already federally registered, for a new or additional end use, under certain conditions.

Hopefully the sizeable penalties and fines in the Scotts’ case will highlight the importance of understanding FIFRA requirements and serve as a warning to other companies not to take FIFRA or the EPA lightly.

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