Retailers and Third-Party Platforms Need to Be Vigilant to Protect Against Fraudulent and Illegal COVID-19 Disinfectant Claims

The U.S. Environmental Protection Agency (EPA) continues to make a concerted effort to protect Americans from products that falsely and illegally claim to be effective against the novel coronavirus, SARS-CoV-2, the virus that causes the disease COVID-19. On Friday, April 3, the agency announced that EPA Administrator Andrew Wheeler brought together U.S. retailers and third-party platforms to discuss how to address this problem. Even though EPA appears to be collaborating with the retail community to combat these products, all retailers and third-party platforms should know the potential consequences for failing to comply with federal law and regulations. Indeed, EPA may resort to enforcement actions against these retailers and platforms in addition to going after the product manufacturers.

As COVID-19 continues to spread throughout the United States, EPA has made addressing the novel coronavirus one of the agency’s top priorities. EPA’s primary means of advancing this priority is through the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which requires any product making certain anti-viral, antibacterial, disinfectant, sterilizing, or sanitizing claims to go through the agency’s pesticide registration process. EPA has been adding products to its list of disinfectants for use against SARS-CoV-2, which now has over 360 approved products.1

Notably, EPA’s announcement contained an important warning buried near the end: “EPA is also coordinating with the U.S. Department of Justice and other federal partners to bring the full force of the law against those selling fraudulent or unregistered products.” The agency made a point of stating that it will prosecute those who sell – not just manufacture – these products. This warning is not without precedent: EPA has taken enforcement actions against retailers and online third-party platforms for selling unregistered, illegal pesticides in recent years. Therefore, if your company manufactures or sells products claiming to have anti-COVID-19 properties, it is highly advisable to seek legal counsel to ensure that you are complying with the laws and regulations under the jurisdiction of EPA and other federal agencies (e.g., FTC and FDA).

[1] If you have any questions about how to get a product registered and approved for this list, Wiley has the substantive FIFRA expertise to answer those questions.


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