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Copyright © 2018 | www.khlaw.com Keller and Heckman LLP 1
Pesticide Advertising
What Can We Say?
Part One: Labels and Labeling
April 4, 2018
Copyright © 2018 | www.khlaw.com Keller and Heckman LLP 2
Michael T. NovakMichael Novak practices environmental and business law
for chemical manufacturers and other clients, including
agricultural, antimicrobial, and biochemical pesticide
producers. His practice focuses on the regulation of
pesticides and other chemicals under the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) and
other federal and state regulatory programs.
Mr. Novak has expertise in pesticide regulatory issues
associated with product registration, including the
registration of biochemicals and unique technologies;
petitions to cancel or deny registration; data
compensation matters; adverse effects reporting;
enforcement issues; import and export requirements;
tolerance petitions, including the approval of inert
ingredients; and the treated-article exemption.
[email protected] • 202.434.4485
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Pesticide Advertising: What Can We Say?
Part One The Label and Labeling
Part Two Other Advertising
(Media Other Than the
Label or Labeling)
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Today’s Topic
Roles of EPA and FTC in Regulating
Advertising
What Can We Say on the Pesticide
Label?
What Can We Say on Labeling?
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Roles of EPA and the FTC
• EPA – approves claims on the label
through registration of pesticide product
• Section 3 and 40 C.F.R. Part 156
• EPA also regulates “Advertising”
• Not defined in FIFRA
• “Advertising” Regulation: 40 C.F.R. Part 168,
Subpart B
• Section 12 Unlawful Acts – misbranding,
“substantially differs”
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The FTC
• Section 5 of FTC Act: No deceptive
advertising (i.e., false or misleading)
• Substantiate claim with competent and
reliable evidence
In re: Farnam 45 Fed. Reg. 64596 (Sept. 30,
1980) (false or misleading statement made in
advertising: “non-toxic and safe” in print and
broadcast advertising)
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EPA and FTC
• Dual jurisdiction over pesticide product
advertising
• Advertising – claims in any medium
(includes label, labeling, websites,
television, radio, print, etc.)
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What Can We Say on the Pesticide Label?
• FIFRA § 3(c)(1) applicant files statement of claims
• EPA Approves Master Label• Legal document submitted to EPA in application
• Required statements, approved uses, and claims
• EPA-approved, i.e., “stamped”
• Final Printed Label (“FPL”/“Commercial”)• Regulations dictate text size and placement
• Includes registrant’s “art work”
• In past implemented EPA comments
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What Can We Say on the Label?
• “Label” – Written, printed, or graphic matter
on, or attached to, the pesticide or device, its
containers or wrappers
• Physical Proximity
• Label must be “securely attached” to
the immediate container of the
pesticide product. 40 C.F.R. § 156.10
• Label must be attached to the
pesticide product at a registered
establishment. 40 C.F.R. § 167.20
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Unlawful Misbranding
• FIFRA § 12 (a)(1)(E)
• (a) (1) It shall be unlawful to distribute or sell
• (E) any pesticide which is … misbranded
• FIFRA §2(q)(1)(A) includes but not limited to:
• The label does not bear the registration number
• Any word, statement or other information required by
EPA to appear on the label or labeling is not prominently
placed thereon
• The labeling accompanying does not bear directions for
use
• The label does not contain a warning or caution
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What Can We Say On the Label?
FPL Includes only Text Verbatim from Master Label
Can We Paraphrase/Revise?
Brackets – [cleans and] disinfects hard surfaces
PR Notice 98-10 – Non-notifications
State Review of FPLs
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Advertising Strategy
• All Claims in Advertising Approved on the Master Label
• Tension between safety information and marketing claims (FR Notice on Third-party Cause Marketing – Red Cross)
• PM Reviews and Positions Can Vary
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What Can We Say on Labeling?
Must Labeling be Submitted to EPA for
Approval?
EPA Label Review Manual
If Reference on Label
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What Can We Say On Labeling?
• “Labeling” – All labels & all other written,
printed, or graphic matter: (a) accompanying
the pesticide or device at any time; or (b) to
which reference is made on the label or in
literature accompanying the pesticide or
device
• Broader concept
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FIFRA §2(q)(1)(a)
A pesticide is misbranded if
“its labeling bears any
statement, design or graphic
representation which is false
or misleading in any
particular.”
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False or misleading statements (40 C.F.R. §
156.10(a)(5)) Examples
• A false or misleading statement about
(1) composition; (2) efficacy; (3) non-pesticidal value or a false/misleading comparison with another pesticide
• Any statement implying Agency endorsement
• A direct or comparative safety claims such as “safe,” “nonpoisonous,” “harmless,” or “nontoxic to humans and pets”
• Non-numerical or comparative statements on safety such as “contains all natural ingredients,” “among the least toxic chemicals known”
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What Can We Say on Labeling?
• EPA Label Review Manual, Chapter 12,
Labeling Claims
• Examples of Unacceptable Claims
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What Can We Say on Labeling?
• Lawful Paraphrases that are not False or
Misleading or Otherwise Unlawful
• Anchor Claims Approved on Label
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Washington, DC • Brussels • San Francisco • Shanghai • Paris
Keller and Heckman LLP
THANK YOUMichael T. Novak
Keller and Heckman LLPWashington, DC Office
+1 202.434.4485