Hunton Retail Law Resource

On April 3, 2020, the United States Environmental Protection Agency (EPA) and leading retailers participated in a conference call to discuss ways to protect American consumers from fraudulent COVID-19 disinfectant product claims. As the pandemic continues to wage on, some manufacturers have started to advertise their products as effective against the virus despite a lack of scientific evidence supporting the claim. Such advertising may violate federal law and potentially endangers consumer health and the environment, and could expose retailers to liability.

FIFRA Registration Required to Make COVID-19 Disinfectant Claims

EPA and retailers have been working closely together to police uncorroborated product claims about COVID-19 and provide accurate information to the public. Only products that have been reviewed and registered as effective against COVID-19 by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) may legally tout COVID-19 disinfectant or sterilization qualities. FIFRA-registered products have undergone significant testing and review to ensure that claims about the product’s efficacy are accurate and that the product, when used as intended, does not pose unreasonable risks to human health or the environment.

EPA has engaged in significant outreach to both the retail industry and the public to publicize its “List N,” which includes all the products that have been registered with EPA under FIFRA as effective against COVID-19 on surfaces. EPA has already identified several products that may have been sold in violation of FIFRA and is constantly working with US Customs and Border Protection (CBP), the Department of Justice (DOJ) and retailers to stop the sale of unregistered products and remove them from the marketplace. Any retailer who sells a product in violation of FIFRA could find itself the subject of stop-sale orders and even civil or criminal penalties.

Best Practices to Protect Consumers from COVID-19 Fraud

Retailers should confirm that any product they sell that claims on packaging or product literature to be effective against COVID-19 is registered on List N. Retailers should avoid making independent claims about product properties in advertisements, on store displays or in communications with customers. Supply contracts should specify that manufacturers are responsible for ensuring that information provided to support FIFRA registration is complete and accurate. They should also contain strong indemnity provisions shifting the risk for inaccurate product claims back to the manufacturer.

Concerns about potentially inaccurate product descriptions are particularly challenging for platforms allowing third-party sellers to advertise their own products. One effective way to mitigate those challenges can be the use of automatic scanning systems, which can quickly identify products that contain certain keywords that may indicate the product is being advertised as effective against COVID-19. Many companies already use similar systems to monitor customer service reports for reports of product hazards, injuries or defects, and those systems can often be adapted for COVID-19 purposes.

Retailers should also take steps to train customer service representatives on how to respond to consumer inquiries about sterilization and disinfectant properties of certain products, including referring consumers to EPA’s List N as the most up-to-date, comprehensive source of accurate information. Finally, retailers should be attentive to any customer reports of injury or inefficacy associated with products they sell that claim to be effective against COVID-19, whether they are FIFRA-registered or not, and should promptly relay any such reports to the appropriate regulatory authorities.