Key Takeaways:

• What Happened: On an April 3, 2020 call with retailers and marketplace platforms, EPA identified enforcement against sales of unregistered or fraudulent disinfectant products as a high priority during the COVID-19 pandemic.

• Who’s Impacted: Retailers and third-party marketplace platforms that distribute, sell or make available disinfectant products within the United States.

• Potential Actions for Retailers to Take: Monitor products sold or distributed through their platforms for anti-coronavirus claims without EPA registrations and take steps to prevent such products from being sold.
• By When Should They Act: As soon as possible.

Since the beginning of the global pandemic of COVID-19, the disease caused by novel coronavirus SARS-CoV-2, the U.S. Environmental Protection Agency (EPA) has identified a growing number of disinfectant products on the market that claim to be effective against the novel coronavirus but which have not been registered with the Agency or approved for that use. On April 3, EPA Administrator Andrew Wheeler informed members of the retail community that EPA will be taking legal action against those selling disinfectant products making unsubstantiated or fraudulent anti-coronavirus claims. Many of the participants shared steps they have already taken to help address this compliance issue. EPA issued a summary of the call in a news release on the same day.

Coordinating Efforts to Keep Fraudulent Products Off the Market

Disinfectants, sanitizers, and other substances intended for use on objects and surfaces against microorganisms are considered antimicrobial pesticides and cannot be sold or distributed for a specific use unless that use is first registered by EPA under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). EPA typically enforces against the distribution or sale of unregistered pesticides under FIFRA through stop-sale orders and penalty actions.

In its April 3 summary, EPA identified examples of specific disinfectant products making anti-coronavirus claims, which have not been registered by the Agency, including:

• “Virus Shut Out” and “Air Sterilization” lanyards that claim to protect wearers from coronavirus;
• Unregistered “Epidemic prevention,” “Flu Virus Buster,” and “Anti COVID-19” disinfectant tablets;
• Unregistered disinfectant sprays that claim “24 Hours of Lasting Protection . . . Against Corona Virus”; and
• Unregistered disinfectant or sterilization wipes for “Prevention of Coronavirus.”

EPA noted that these products are not approved for sale in the United States, while emphasizing its separate efforts to facilitate the production and availability of registered disinfectants.

Retailers who wish to be proactive on this front are monitoring inventories and marketplace platforms for anti-coronavirus disinfect claims and removing unregistered products from availability. For a list of registered products for use against SARS-CoV-2, retailers and consumers should refer to EPA’s List N. For more information on List N, please see our alert available here.

Visit Beveridge & Diamond’s COVID-19 Resources Page for more information on navigating the global pandemic. Beveridge & Diamond’s Pesticides practice has worked for forty years with U.S. and international clients who research, develop, obtain government approvals for, manufacture, promote, and use pesticidal products and devices. We represent large and small companies with an emphasis on entities that invest in research to discover, develop, and defend new technology. Our Pesticides practice helps clients identify business objectives and implement the most effective regulatory, commercial, litigation, and legislative strategies to achieve or exceed those objectives. If you have any questions, please contact the authors.