[Label Issue Update] 'For use only by' statements buried?

In 2006, the Environmental Protection Agency (EPA) drew a line in the sand. Now with its Jan. 17 rodenticide notice, it is firmly planting its position well behind that line, stating, "‘for use only by’ label statements…are not enforceable and create no obligations on sellers or enforcement agencies."

The topic has been the subject of industry controversy for quite a while, but it came to a head last year when EPA published an issue paper inviting comment on whether EPA should allow label wording such as "for use only by" for non-Restricted Use Pesticides, what the value or problems would be and whether states can restrict sales by user type.

PCT magazine’s October 2006 cover story focused on the controversy. PCT published in that report information about consumers purchasing "professional use" pesticides, as well as the comment replies made by a number of industry stakeholders that EPA should limit consumer use of potentially hazardous products by including and enforcing a "for use only by" label statement. The targeted group of pesticides in that issue was termiticides, because of the specificity of label directions and the damage that can be wrought if the label is not carefully and accurately followed. While one option to control use would be to reclassify the products as Restricted Use Pesticides (RUPs), many experts say this action places extreme limits on sales and use, and it is generally not preferred by manufacturers or PCOs.

WHAT HAPPENED NEXT? Shortly after PCT published its report, EPA published an issue paper with a synopsis and discussion of comment received, with the EPA’s resulting conclusion that "use and user limitations required by the Agency as terms or conditions of registration in order to mitigate risk must be stated in enforceable, mandatory terms" and "Advisory language — such as ‘recommended (or not) for XXX use’ — is acceptable for marketing purposes, but is not enforceable and creates no obligations on sellers or enforcement agencies."

With publication of this issue paper, the EPA’s OPP Labeling Committee then set the issue aside, declining to take any regulatory action "in part because another part of OPP is planning rulemaking that may have a substantial effect in this area."

In January, however, a similar issue was brought to discussion again with EPA’s consideration of a risk mitigation decision for rodenticide bait products (see related story on page 32). The rodenticide issue is currently out for comment, but of interest to those who are vested in the "for use only by" label question was a footnote that stated:

"As an alternative to restricted use classification, the Rodenticide Registrant’s Task Force (RRTF) has proposed a label statement restricting to certified applicators (or those working under their supervision) the outdoor use of rodenticide bait products containing the nine active ingredients covered in this proposal. The Agency has concluded that it is not appropriate to include on the label of a non-Restricted Use product any language suggesting that use is limited to certified applicators. EPA believes that ‘for use only by’ label statements such as the one proposed by the RRTF are not enforceable and create no obligations on sellers or enforcement agencies."

In regard to the proposed rodenticide requirements, the initial take of the National Pest Management Association is favorable, says Senior Vice President Bob Rosenberg. But, he adds, referring to the inclusion of the "for use only by" footnote, "it took an interesting turn." The initial proposal coming from California would have virtually eliminated use of the second-generation products, but the EPA’s final decision, while adding restrictions, does leave professional use intact.

As indicated by the footnote, a discussion was held on adding a "for use only by" statement to product labels rather than making them RUPs, Rosenberg says, "but they decided the only effective way to limit the use of the products is restricted use." Because of this final decision and the reiteration of EPA’s stance against "for use only by" statements, Rosenberg says he does not expect that there is much chance of convincing EPA to allow and enforce the statements for termiticides either. Instead, the choices for restricting homeowner use would be making them RUPs or changing the law so EPA can rightfully enforce the language. "That," Rosenberg says, "can’t be done lightly."

Will NPMA continue to espouse use and enforcement of "for use only by" statements? "It’s not a dead topic, but it’s not as alive as it was," Rosenberg says.

The author is a frequent contributor to PCT magazine. She can be reached at llupo@giemedia.com.