ABSTRACT
RetailerIn November 2013, “a duly-commissioned EPA inspector” came knocking at Pathway Investment Corporation’s doors in suburban New Jersey asking questions about and seeking samples of the company’s popular line of food-storage containers [2]. Although his questions were answered by Pathway’s owner, his request for product samples was refused. After his visit, this small family-owned business was cited by EPA for selling “Kinetic Go Green Premium” and “Kinetic Smartwise” food-storage containers in violation of FIFRA, and issued an order “not to sell or use any and all quantities and sizes” of the offending products and “not to remove (i.e., move from one warehouse, showroom or office to another location)” them without written approval from the EPA [3]. These plastic products are embedded with particles of nanosilver “to protect
the containers against mold, fungus and other microorganisms” and marketed with claims that this technology “allows food to stay fresh up to 3 times longer” [4].In the byzantine world of federal regulatory commandments-where it is estimated that “a new regulation is issued every two hours and nine minutes-24 hours per day, 365 days per year, [5]”—Pathway’s health claims about the germ-killing properties of its food-storage containers meant that it was operating a pesticide “establishment” and selling unregistered “antimicrobial pesticides” in violation of FIFRA [6].All “pesticides” sold in the US must be registered with EPA [7]. This includes traditional pesticides-such as weed killers, insect repellants, home disinfectants, flea and tick pet pesticides, and many agricultural or industrial use chemicals-as well as non-traditional pesticides that do not typically leap to mind when one thinks “pesticide,” such as any product that is labeled or marketed with express or implied health claims regarding properties that eradicate “pests” like mold or bacteria [8]. Claims of this sort can only be made in respect of products that have been tested for safety and registered with EPA under FIFRA.This news probably came as a surprise to Pathway’s husbandand-wife management team, who imported the offending products from Southeast Asia, where the antimicrobial activity of nanosilver particles is viewed so benignly that they are “commonly and openly … sprayed in Hong Kong subways and touted on Korean toothpaste tubes [9].” While no excuse, their ignorance of the law is at least understandable. What’s not is how larger, more sophisticated e-commerce and big-box retailers like Amazon, Sears and Wal-Mart (which received letters from the EPA warning them to stop selling Pathway’s products) managed to get caught with their regulatory-compliance pants down in this day and age [10]. This incident is believed to be the first time that a nanotechnology-based food-related product has been withdrawn from the market. 24.3 Nanotechnology and FIFRA: Nomenclature
Over Matter?FIFRA makes it unlawful to sell an unregistered pesticide product in the US [11]. EPA’s enforcement powers, moreover, are broad
enough to reach any company in a product’s chain of distribution [12]. While food-storage containers in most eyes would not normally be considered a pesticide, FIFRA defines the term “pesticide” to include, among other things, “any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest” [13]. This statute prohibits the distribution or sale of unregistered pesticide products. Its implementing regulations provide:
A pesticide is any substance (or mixture of substances) intended for a pesticidal purpose, i.e., use for the purpose of preventing, destroying, repelling, or mitigating any pest or use as a plant regulator, defoliant, or desiccant. A substance is considered to be intended for a pesticidal purpose, and thus to be a pesticide requiring registration, if: (a) The person who distributes or sells the substance claims,
states, or implies (by labeling or otherwise): (1) That the substance (either by itself or in combination
with any other substance) can or should be used as a pesticide; or
(2) That the substance consists of or contains an active ingredient and that it can be used to manufacture a pesticide; or
(b) The substance consists of or contains one or more active ingredients and has no significant commercially valuable use as distributed or sold other than (1) use for pesticidal purpose (by itself or in combination with any other substance), (2) use for manufacture of a pesticide; or
(c) The person who distributes or sells the substance has actual or constructive knowledge that the substance will be used, or is intended to be used, for a pesticidal purpose [14].
