[Cover Story] Digital Dilemma

Editor's note: The Internet has made purchasing professional-use pesticides as easy as clicking a mouse. Should the industry be concerned? PCT's special report takes a look at both sides of this controversial issue. For simplicity and  readability, this article uses the terms “professional-use products” or “professional-use pesticides” to refer to those pesticides labeled for use only by … or for sale to, storage and use only by… persons licensed and registered by their state to apply the product.

Professional-use pesticides are being sold to and used by non-licensed, non-registered applicators and homeowners at an ever-increasing rate. While the situation isn’t new, the Internet has been a major cause of this increase through its ease of accessibility (check eBay — at any given time there are an average of 50 listings for specific professional-use termiticides) and difficulty of tracking (most of those 50 listings are by separate individuals, with only alias screen names as general identification for buyer and seller, and a profusion of seller disclaimers).

Yet the Internet is just one piece of the challenge of controlling the sale to and use by non-professionals of such products. It’s a piece that, while increasing sales, also has increased the controversy on the control of such sales and use, and even whether there should be control at all. The questions raised in the controversy cover everything from legality of sales and use to whether it is even a real problem. And the No. 1 question? Can — and should — professional products be sold to non-professionals? That is, should pesticides labeled for use only by … or for sale to, storage and use only by … persons licensed and registered by their state to apply the product be legally sold to non-licensed, non-registered persons?

It is a contentious question if interviews with industry stakeholders by PCT magazine during the past two months are any indication.

"That’s not an unlawful act. The fact of the matter is the restriction is a use restriction. There is not a sales restriction on them." — Jack Neylan, pesticide information officer with the Environmental Protection Agency Office of Compliance

"They [EPA] have said that language is not enforceable. They’re wrong." — Jim Wright, regulatory supervisor for the Clemson University Department of Pesticide Regulation and chair of the ASPCRO Stewardship Committee

"It must be used according to label directions. That’s how they can do it." — Tim Creger, chair for the IT Committee of the Association of American Pest Control Officials (AAPCO) and Pesticide Program manager for the Nebraska Department of Agriculture

EPA argues that, according to FIFRA, it has no jurisdiction over the sale (only the use) of pesticides; states must regulate and enforce this area if they deem it appropriate. Others contend that sales is a function of use over which EPA does have purview, and the states would follow EPA’s ruling given the green light.

THE BACKGROUND. EPA governs the use of pesticides, as provided by Congress’ 1970 transference of administration of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) to the then newly created EPA.
FIFRA was enacted in 1947 "to regulate the marketing of economic poisons and devices, and for other purposes," as defined in the act. Regulating pesticides categorized as "Registered Use" is a fairly clear-cut proposition, even when related to domestic Internet sites. This is primarily because there are precise laws guiding the sale and use of Restricted Use Pesticides (RUPs) — laws that have identifiable regulations and enforcement procedures.

Regulation of professional-use products, on the other hand, is a much hazier proposition, because though intended and labeled for use only by licensed or registered applicators, they are categorized as "General Use Pesticides." One category of pesticides that falls into this haze and is the subject of much of the general-use controversy is termiticides. While these are not RUPs, they do hold professional-use labeling, with wording recommended by the EPA itself in the Limitations of Use section of the 1996 Pesticide Registration (PR) Notice 96-7, which states:

Most currently registered termiticide products are not classified for restricted use, but contain label statements limiting their use to commercial applicators. Registrants should replace the current statement on the labeling of general use termiticide products intended for use by commercial applicators, or individuals/firms licensed or registered by the state to apply termiticide products, with the following statement: "For use by individuals/firms licensed or registered by the state to apply termiticide products. States may have more restrictive requirements regarding qualifications of persons using this product. Consult the structural pest control regulatory agency of your state prior to use of this product."

In addition, EPA’s Label Review Manual, updated in August 2003, states that termiticides should contain the previous statement. However, the manual asserts in a bold, blocked statement:

It should be noted that although some of the above mentioned statements restrict who can use the product, none of the statements restrict who may purchase the product, unless the pesticide is classified for restricted use. The only way to restrict sale of the product is through classification of the product as a Restricted Use." [PCT emphasis in bold.]

And therein is the basis of the controversy. In our free-enterprise system, under existing regulations, does EPA (or, for that matter, any other regulatory body) have the right or the jurisdiction to control these sales? Or does its mission "to protect human health and the environment" mandate the responsibility to do just that?

EPA’S STANCE. Based on FIFRA regulations, the EPA is limited in its jurisdiction, Neylan says. "The fact of the matter is the restriction is a use restriction. There is not a sales restriction on them. FIFRA only allows us to control the use," he says.

In January, EPA published an issue paper requesting comment on whether the agency should allow "use only" labeling restrictions, the value or problems associated with allowing it, and whether states should have the ability to restrict sales to specified users. The paper states that while EPA itself issued limits on the use of termiticides and certain mosquito control products through 1996 and 2005 PR Notices, most use restrictions on general use products "are ineffective from an enforcement standpoint and thus of questionable use for mitigation purposes." The termiticide and mosquito limitations "appear to be effective because the persons specified on the label to apply these products are clearly identifiable, either by a state credential other than certification (state license for termiticides) or by being employed by certain public agencies." The paper goes on to say, however, "It is important to note that the agency cannot restrict the sale and distribution of a product without classifying it as a Restricted Use Pesticide."

Wright finds fault with EPA’s sale vs. use stance. "It is a pitiful public policy that says you can purchase a product that it is illegal for you to use," he says. "I have been in government for 25 years and have learned to step back and look at things according to the ‘laugh test.’" Why would the federal government allow someone to sell a product, such as a termiticide, that the buyer is not legally allowed to use? "It becomes a 2½-gallon paperweight — or a pretty doorstop," he says. "It doesn’t pass the laugh test."

The issue of enforceability is a key to the controversy. BASF, for one, attempted to take EPA’s termiticide label recommendation to the next level by incorporating the statement "only for sale to or use or storage by …" in place of the simple "use only," but, Wright says, EPA came back and claimed because the product is not classified as restricted use, they have no purview over its sale. "I think that’s a ridiculous answer," he said.

"Why does that sentence not apply?" asks BASF Senior Marketing Manager Karl Kisner. "Why can they not enforce that part of the label?" In fact, prior to adding the "sale-only-to" wording, the company asked its government relations representative, John McCauley, whether the wording would be enforceable. Prior to working with BASF, McCauley was Kentucky’s director of the Division of Pesticide Regulation and is past president of the Association of Structural Pest Control Regulatory Officials (ASPCRO). "As a former state regulator, I feel it is 100 percent enforceable," McCauley says. "There’s been a problem for some time of people getting hold of professional-use products and reselling them. We’re very concerned about it."

"Before we sell [professional products] to anyone, they have to be trained," Kisner says. "The issue is products that are brought to market labeled for use by professional applicators winding up in the hands of people we don’t know who they are." In an attempt to limit such product transfer, BASF places a priority on stewardship of its professional-use products, such as termiticides, with four key initiatives:

· The company issues partner numbers to its buyers with the agreement that distributors and agent channels are selling only to professional users who have an assigned partner number. In becoming a partner, the pest management professional states they are purchasing product for their own use and will not re-sell the product.

· If BASF discovers that a sale has been made outside the parameters of the agreement(s), the partner number is suspended or pulled.

· The company is working closely with EPA and ASPCRO to make enforceable label changes to "provide solutions to help give them tools to allow greater enforcement."

· BASF has contacted online resellers asking them to limit sales to only professional users.

However, stewarding the resale of the products is difficult because, Kisner says, "Once someone buys the product, it’s theirs. We know of some cases, and it’s a small amount, a very small amount, but there are some unscrupulous PCOs who resell the products regardless of the label language and the agreements they make in being a Termidor partner."

But as a manufacturer, Kisner adds, "We are very limited in what we can do as we are not an enforcement entity." The company does, however, track product reselling as much as possible, including Internet sales. "We have contacted eBay," he says. "They responded that as long as the product can be sold and people want to sell it, they won’t do anything." BASF also has contacted other major Internet resellers. "They say, ‘This is our business. Leave us alone,’" Kisner says.

INTERNET SALES. While the Internet opened a world of opportunity, it also set off new challenges — for which many were not prepared. The year 1990 saw the birth of the first commercial Internet Service Provider and by the end of that decade, an estimated 407 million users were online. "We sat back and watched the phenomenon of e-commerce blow up in our face in the late 90s. It caused huge transactional violations of FIFRA," says Tim Creger, chair for the IT committee of the Association of American Pest Control Officials (AAPCO) and pesticide program manager for the Nebraska Department of Agriculture. With a goal to "encourage uniformity among the states in their pesticide regulatory programs," AAPCO was one of the groups that first brought the illegal Internet pesticide sales to EPA’s attention.

EPA originally rejected AAPCO’s assertion that RUPs were being sold undeterred on the Internet, so "we went online right in front of them," and, without a license, purchased an RUP from a foreign site. "That got their attention," Creger says. "That’s when they agreed to work with AAPCO." Within 18 months, a mutually developed e-commerce policy document was issued. The document provided standards for states and EPA to notify Web site resellers of activities that were in violation, then document and archive the communication so issues and companies could be tracked easily. The organization’s work with EPA also helped to tighten up professional-use label wording to clarify the "waffle language" from "for professional use only" to naming of specific subpopulations that are identifiable and enforceable. But because the states have the final enforcement authority, and FIFRA restricts only use, unless the regulations are changed or tightened, that was as far as AAPCO could take its work at that time.

Since then, the agencies have been able to get a fairly good handle on RUP sales, but have had a much greater challenge with minimum risk pesticides, Neylan says. "It’s a daunting sort of thing in some respects because it is so easy for someone to get a Web site and get into the business," he says.

"The Internet age has changed this thing quite a bit," says Pete Farno, director of marketing, Bayer Environmental Science. "That troubles us to a certain degree." Through prior channels, Farno says, professional products could get in the hands of the homeowner, but it was much easier to monitor. To increase accountability, the manufacturer has implemented a stewardship program through which product distribution is tracked, including frequent monitoring of reseller Web sites. "We do frequently monitor Web sites we are aware of," he says.

Although the intent of labeling products for professional use is that they are not intended for sale to or use by the homeowner, Farno says, if the product is being handled properly, according to state and federal laws, a purchaser has the right to resell a product. "We do have to honor and respect the free enterprise system. If those people are following regulations, it is an honorable and reputable way of doing business," he says.

EPA worked with the Internet auction site eBay to come to an agreement on pesticide sales. "The seller is supposed to confirm that they are aware of and are in compliance with federal and state laws," Neylan says. "But you can go in there any day and find things that aren’t up to speed. It’s an issue that is very hard to deal with."

Along with provisions on ensuring intact and accurate packaging for pesticide products, the eBay seller’s agreement states that pesticides can be sold on the site only if the pesticide is currently registered (not suspended or cancelled) by EPA and the buyer’s state; the pesticide is not an RUP; and the buyer is eligible to purchase the pesticide under federal and state law. In addition, the agreement states that "Because the seller bears initial responsibility for ensuring a lawful and safe sale, sellers on eBay must state affirmatively in all pesticide listings that:

1. The seller will comply with all applicable federal and state laws and regulations and ensure that the purchaser satisfies all applicable laws and regulations;

2. The seller will not accept bids from or ship to states where the pesticide is not registered as a general use pesticide."

eBay resellers, however, often resort to disclaimers to limit their responsibility, such as that made by one reseller, stating: "Some products sold on this Web site may require the special licensing, training or registration of the user with that user’s country, state, county, city, province, etc. Our products are sold throughout the world and it is impossible to know every licensing restriction, product registration, etc., for every country, state, county, city, province, etc. It is the responsibility of the purchaser and/or the end user to provide a license, permit, registration, etc., if requested by that purchaser’s local or state authorities."

"I’m not a lawyer," Farno says, "but I’d say that disclaimer doesn’t sound too responsible to me." When you’re selling a product you have a responsibility to know all applicable regulations, he explains. "When we sell it to our distributors, we make sure they are licensed. In turn, they generally sell to PCOs. If selling to a reseller, they should be checking licenses. If not, they shouldn’t be selling it."

In fact, a 2004 EPA Fact Sheet on Pesticides Sales in E-Commerce states: "Generally, it is the seller’s responsibility to ensure that pesticides sold over the Internet are labeled according to federal standards and are registered both by the U.S. EPA and any state in which they are distributed before offering them for sale. … Each state has its own laws regulating the sale, distribution and use of pesticides within that state. You should check on the state laws regulating the use and sale of pesticides in each state where you sell pesticides." (EPA emphasis in bold.)

INTERNET SELLERS. ePestSupply.com is an online vendor of pesticide products. The Internet storefront, owned by Dallas Fort Worth Pest Control, sells professional use products to both the industry and the public. Understanding that the sale of professional products "is a gray area," ePestSupply President and CEO Ron (RJ) Dawson Jr. has taken steps to ensure his company stays on the right side of the law. "I’ve talked with officials at EPA," Dawson says, and according to EPA, "unless the product says restricted use on the label, it is not restricted use." Because he sells his products nationally and internationally, Dawson has been contacted by several states, and all, he says, are in consensus that unless the product label shows the product to be a restricted-use pesticide, the "for sale to and use by" statement is "just a manufacturer disclaimer."

Some states do include certain professional products on their limited use lists, which also limits the sale of the products, and Dawson complies with these limitations in his sales as he does all state or federal laws, he says. In fact, the company is licensed by both the Texas Department of Agriculture and the Texas Structural Pest Control Board. "We go to the next level to make sure we’re legal," Dawson says. "I don’t want to get burned. This is our livelihood.

"We’ll walk on the line, but we’re not going to break the law."

If a change in the law were to require that sellers attain proof of a buyer’s license or registration, ePestSolutions would discontinue the online sale of these products. The Internet site does not sell Restricted Use Products online primarily because of the difficulty of attaining such information. "You can’t do it," Dawson says. "It’s almost impossible on the Internet."

Seeing the trend toward increased control of professional products, Dawson has been diversifying his company and moving away from Internet pesticide sales. The company always has sold products from "a little shelf up front" in its building, and in fact, sales to professional applicators basically started their business, he says. Then the Internet came along; in the beginning, the sales drove the development of the Internet site, but now the Internet is driving the sales. Currently, he says, "If the EPA said you can’t sell those products anymore, we’d say OK.

"I have fears and concerns about the very thing we are talking about," Dawson says. "I’m really trying to get away from selling anything like that." Instead he is developing an Internet marketing company, with a focus toward video production and Web design — outside the pest control industry.

Walt Cline, president of doyourownpestcontrol.com, also will sell professional use products to non-professionals in states where it is not prohibited, but he does encourage homeowners to contact a professional pest control provider or use baits rather than using termiticide liquids themselves. "All that material is better off for professionals," Cline says. "But we feel [baits] are extremely safe to use."

The Internet pesticide reseller will not refuse such sales, however. "We’re not breaking any laws, so if they want to buy it, it’s fine," he says. In addition, he says, homeowners can get products with the same active ingredients from a local home store. "It may not be as high a percentage, but it’s the same thing. It’s still permethrin, and it’s no different."

If EPA were to determine that the use statement is enforceable and that the products cannot be sold to non-professionals, "We’d probably take it off," Cline says. "We don’t have time to be in the police business."

NPMA Senior Vice President Bob Rosenberg does not see the Internet sales as really being the problem, in part because no one has quantified how much is being sold. Citing an example of eBay sales of 30 gallons of product, he asks, "Is that a serious problem? If eBay elected to not allow sale of those products, the problem would still not be addressed.

"People have been selling professional products to consumers for a very long time," he says, noting that some can be purchased off the shelf at some home centers. "I think the real problem is sale of professional products."

THE STATES. According to FIFRA, "a state may regulate the sale or use of any federally registered pesticide or device in the state," as long as it does not allow sale or use of a product not allowed by the act. Because of this, the United States has 50 vastly varying regulations. Chair of the ASPCRO Stewardship Committee, Jim Wright, says he sees the states as divided into three groups:

· One-third don’t have the resources to address the issue at all.

· One-third are not interested in it or don’t feel it is a big enough problem to bother.

· One-third has some enforcement, but each is different.

Some states do not prohibit a homeowner from buying a professional product. However, "when they use it, they may be crossing the line in some states from a state regulatory perspective," Farno says, adding, "Certain states actively enforce it; others don’t." And in fact, some states seem to vary even from regulator to regulator.

"Some states take a very aggressive tack to enforce professional use, others say ‘My jurisdictional authority doesn’t let me do that,’" Creger says. But, as a state regulator himself, Creger asks that the industry "try and be cognizant of what state regulators are up against. Our mission is to protect humans and the environment from harm." If manufacturers truly want a product to be usable by homeowners, then let it. "If they don’t, then find a way to write it so it is enforceable by state regulators." It really boils to business ethics, he says, "If you don’t really care who uses it, then don’t be surprised if the states do it for you."

In 2002, the state of Wisconsin created a "Pesticide E-Commerce Procedures Manual" in response to the number of pesticides being sold into the state. The goal of the e-commerce procedures, the manual says, is to "further improve Internet business compliance with laws regulating the manufacture, labeling, and distribution of pesticides into Wisconsin." Focusing primarily on RUPs and non-registered or discontinued products, the procedure includes Internet searches by Wisconsin state investigators designed to "find violative Web sites and initiate compliance with Wisconsin rules and regulations."

In addition, Wisconsin does periodic checks on labels which come into the state through Internet sales, says Patricia Kenscera, section chief for the Wisconsin Department of Agriculture, with much of its work being complaint driven or conducted in tandem with other states. The department follows regulatory updates and consumer issues, and maintains constant communication with its counterparts in other state. "There are resource challenges over here, probably like there are in all states," Kenscera says, but as a general rule, the state bases its pesticide sale and use laws on EPA regulations.

The state of New York, however, tacks additional laws onto EPA regulations. The state takes the issue of homeowner use and purchase seriously and made it unlawful not only for homeowners to use professionally labeled products but for the products to be sold to non-professionals. "It is an issue and it’s against the law," says Maureen Serafini, bureau director for the New York Department of Environmental Conservation, Bureau of Pesticides. And it is one they will prosecute, she says.

THE PROBLEM? The controversy on professional-use products is not limited to the actual sale and use of the products but extends to its impact on the industry. While some groups are actively working for tightened control and enforceable labeling, others don’t see it as being a significant problem, and some states have not applied resources simply because they do not see the issue as a priority.

Cline, president of doyourownpestcontrol.com, for one, actually sees an enforcement of the "for sale or use by" statement as having a negative impact on some groups of industry professionals. Many online suppliers say that they would remove the products from inventory rather than dealing with proof of professional-user purchasing. "We sell to a lot of pest companies online that are out in the boonies," Cline says. Because it is more difficult and expensive for the companies to buy from major distributors, losing access to the professional-use products through online resellers would make the products less accessible to these small rural operators and would impact their business.

Those in favor of limiting sales of professional products include PCOs who have had to contend with customers asking about the low prices of online products, such as those sold on eBay; environmentalists who fear the repercussions of misused product; and manufacturers, who want to limit sales to the intended users, see this as an issue that negatively impacts the pest management industry in a number of areas:

· Jobs — if homeowners figure they can simply buy professional products on Internet auction sites and do the work themselves, it takes jobs away from the industry. And with the anonymous nature of such sites, buyers have no means of consulting on proper application or use.

· Cost — after seeing the prices at which products are being sold through Internet auctions, customers often challenge PCO pricing of products attained through normal distributor channels.

· Environment — without proper training, professional products, such as termiticides, have high probability for misapplication, which can have a negative impact on the environment.

· Industry Reputation — any misapplied product affects the industry, regardless of the professional — or nonprofessional — status of the applicator.

The National Pest Management Association wrote a comment to EPA stating that it does not agree with EPA’s conclusion that "For Use Only By" statements may not be legally enforceable, but that the real purpose of its comment was not to address the legality but to comment on the practical ramifications. "We believe that it is in its jurisdiction, but it would probably have to engage in rule-making," says NPMA’s Rosenberg.

Citing termiticides as a prime example, the comment states, "There are a number of products whose toxicity alone does not justify a restricted use classification, but where we believe it is appropriate to limit the sale and use of the product." This is applicable when a difficult use pattern makes it likely that an untrained individual would misuse the product and when the misuse has the potential to present significant health or ecological hazards.

The comment goes on to state that NPMA does not believe that a statement prohibiting the use of such product is adequate, but that when "On any given day, a ‘Google’ search yields dozens of Internet and brick and mortar establishments that sell ‘For Use Only By’ products to unqualified persons" and an eBay search produces dozens of ongoing auctions, the label statement would need to read "For Sale Only To and Use Only By."

"If the Agency is serious about limiting the use of products that pose significant risks, it needs to eliminate the ambiguity and take the additional step of outlawing the sale of those products to untrained, unqualified persons. Without the ‘For Sale Only To’ label statement, the prohibition against use becomes virtually enforceable," NPMA wrote.

NPMA wants EPA to finalize the issue and make a formal statement "one way or the other," Rosenberg says. "We think we are so absolutely right that we will win out in the end. We’re the ones in the white hats." The formal statement is important because of its continuing domino effect. "The states would be fairly aggressive if EPA would just give them the green light," he says.

One of the issues that EPA and resellers have with the professional-use label is that some products are manufactured for both professional use and off-the-shelf purchase with little to no difference between the two. Some manufacturers use the professional-use label simply to increase sales, EPA Pesticide Enforcement Officer Jack Neylan says, "It’s a marketing gimmick." And, he adds, if the manufacturers have the strict sales chains that they claim to have, "How is it that [these products] get on eBay?"

Farno agrees some products available to homeowners are "similar" to professional products. "There are absolutely products that are similar." For example, a product may be sold to homeowners to sprinkle on their lawns for insect control, and also used as a professional product for lawn care, he says, adding, if the risk assessment is clean and the product is EPA- and state-approved, it can be sold for both consumer and professional use. Bayer does, however, "recognize the needs, as well as the training, of consumers and professionals are very different," Farno says.

Most products from FMC, another supplier to the pest management industry, are intended for commercial use, thus the manufacturer does not do any direct sales or marketing of these products to the homeowner, says Michelle Imel, FMC communications manager. The company is also committed to strong stewardship of its products, but the resale to a homeowner is not something that the company can control.

"It’s really out of our hands," Imel says, "but FMC considers that a serious violation." This is especially true, she says, where there is potential for serious injury, as is the case with the professional-use products. "All you can do is expect the same commitment" from distributors and resellers, as well as their agreement to abide by label intentions and all laws and regulations.

Nonprofessionals also can get professional products, or even RUPs, through a FIFRA loophole, which allows anyone to pick up the purchased products, even if they don’t have a license, just by giving the number of the licensed person. "There are provisions for allowing it to happen," Neylan says. In addition, EPA, like the states, does not have unlimited resources to police Internet Web sites. "It would be wonderful if we had more time to do it all the time," he said. And, like the states and each of the organizations PCT talked to about this topic, EPA sees the responsibility as belonging to the entire industry. If you see infringement of any sort, let EPA or your state regulator know, Neylan says. "We always appreciate that." (See related story on page 56.)

Also a contention by some is that in America’s free-market society, limiting use is crossing the line. "I hate to be a capitalist," says the Nebraska Department of Agriculture’s Creger, "but in practicality, from a law enforcement standpoint, I never thought I should be allowed as a law enforcement official to exceed my authority. From that perspective, I have no right if there’s no law prohibiting it." And, in that case, he adds, "it gets down to a moral, ethical issue."

"I don’t view this as taking a right away," counters BASF’s Kisner, explaining that there are products developed, packaged and marketed specifically for homeowners.

"All the [professional-use] products can be safely and effectively used in the hands of a trained person," Wright says. "But home-owners will go in and make a purchase. We have documented that that happens." The problem is, he says, homeowners don’t have the knowledge, understanding, or equipment for proper application or even mixing, he says. While sales of professional-use products to non-professionals didn’t start with the Internet, this did make it more difficult to control. "By virtue of simple logistics, it is easier for us to interface with those who have brick and mortar establishments. We can knock on doors and look at records," Wright says. And in general, he added, "we find we have good relationships with them."

But, he adds, it’s not going to be an easy fix. ASPCRO’s comments to EPA stated that the association would like to see the language "for sale to and use by individuals/firms licensed or registered by the state." This would then be defined as PCOs who are actively engaged in the business, and have current training and licensing. "We want to see that language on all [professional-use] products, particularly termiticides," Wright says.

The language is enforceable because sales is a function of use, he says. If you look at federal law, it talks about sale of registered pesticide. EPA has jurisdiction over those sales.

"If EPA will say, ‘Yes, we agree with you,’ then we don’t need to make these Restricted Use Products," Wright adds. (See related story on page 63 for more information.) "We want EPA to say, ‘We agree that the sale of products is indeed a function of use.’ Then the states will have the wherewithal to enforce those provisions."

THE SOLUTION? Since EPA’s request for comments, a number of groups, associations and individuals have responded.

ASPCRO’s comment stated that the specific label statements used on termiticides intended for PCOs "are, and should continue to be enforceable by the states." Although a 2005 EPA letter affirms the agency’s positions that the use restrictions are enforceable, the comment continues, some states have been reluctant to enforce the language, "due to some reluctance of EPA(’s) apparent retreat from the position." The comment goes on to explain that states should be able to limit the sale as well as the use, because: Some states have defined "pesticide use" to include the sales and distribution activities. Thus, the sale of a product with such a label prohibition to an uncertified individual constitutes misuse under state statute. Additionally, most states have a provision in their statute that makes it a violation to aid or abet someone else to violate the law. Under the North Carolina Pesticide Law it is a violation to "cause" any person to violate a label. With a "sale to or use by" statement on the label, such a violation is much easier to prosecute. Internet distribution of commercial-use termiticides could be restricted by such statements if the agency took the position that they are enforceable by the states.

The comment concludes with the assertion: Clearly unenforceable statements such as "professional use," should be prohibited as they are not defined. However, the language limiting the distribution and use of the products by allowing the sale and use of the product only to licensed individuals is an extension of the proper use of the product and is clearly enforceable through FIFRA.

EPA is continuing to work with ASPCRO and various organizations and manufacturers to resolve the issue one way or another. In early August, ASPCRO met again with EPA and its Office of Pesticide Programs Labeling Committee. The meeting resulted in EPA’s acknowledgement of the magnitude of the problem and agreement that the issue, which had been tabled, would be brought back to the forefront, Wright says. EPA made it clear, though, that it would not be a quick process because of other surrounding "use by" issues, including the consideration of the issue paper comments and pesticide classification proposals.

"I felt very good about the response we got [from EPA]," Wright says. It is, however, the first of many steps that need to be taken, he added. "EPA made no promises but was kind enough to give us a forum."

No matter which side of the controversy one is on, there is agreement that product needs to be kept in the right hands. But whose hands are the right hands? Who should have ultimate jurisdiction to regulate and control the distribution to or use by the right hands? "All we need is for the wrong product to get in the hands of a homeowner and a young kid doing something with it that he shouldn’t," said BASF’s Karl Kisner.

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

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What You Can Do

From the postings on the PCT Message Board, there appears to be a concern among pest management professionals about the use of professional products by non-licensed, non-registered users. The concerns of pest management professionals revolve around the reduced value of termite services as consumers find below-cost "professional-use" termiticides for sale on Web auction sites, which results in queries as to pest management professionals’ pricing as well as a do-it-myself mentality based on the assumption that if one has a professional product, one can do the same job as a professional service provider.

The key issue is the controversy over limiting the products to professional sale and/or use, and the enforceability of the "for use only by" label statements in both the selling to non professionals and non-professional use of the products.

Among those who believe the label statements are or should be legally binding and enforceable, the consensus is that pest management professionals can aid the effort — and protect themselves as well — by being vigilant and informing regulatory officials and manufacturers of questionable sellers or sales practices. "If you see something that concerns you, please let us know," says Pete Farno, director of marketing, Bayer Environmental Science.

Even the largest manufacturers, such as Bayer, don’t have the resources to track all product from manufacturer to user, Farno says. "But if someone makes us aware, we will follow up." (In fact, Bayer had received an e-mail the very morning of this PCT interview about a product being sold on eBay.) "We will call them or have stewardship call them," he says.

The difficulty continues with federal, state and local authorities as well, he says, in that federal and many state agencies are under-resourced. Are there ways to technologically track product from manufacturer to user? Yes, Farno says. RFID chips, which would physically monitor where the product goes, could be put in packages. "But you reach a threshold where you have to ask, is it practical; is it appropriate to even do that?"

PCOs also should be concerned about the quality of products sold through questionable sources and take steps to protect themselves from invalid or inferior products. Regulatory Supervisor Jim Wright, Clemson University Department of Pesticide Regulation, notes one case in which a pest management professional made multiple purchases of a product off a Web auction site. When the containers were tested, six were within manufacturer limits; the seventh contained none of the labeled product.

EPA Pesticide Enforcement Officer Jack Neylan agrees that pest management professionals need to beware of questionable product purchases. "With the Internet, I think [pest management professionals] need to assure themselves of the honesty and veracity of where they’re getting product from," he says. There are counterfeiters out there, he adds, as well as things to look for. "If it’s a really cheap deal, you might want to wonder why."

And when you do run across questionable sales or product uses, pass the information on to those who can conduct investigation and enforcement actions. "It’s not good for the industry when these things go awry," Farno says. "We all share some of the burden here to keep our eyes and ears open. It comes down to everyone being vigilant. All should utilize good product stewardship principles and always follow the law."

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For Professional Use Only

Many wonder why manufacturers just don’t make all products Restricted Use. It’s not as easy as it may seem.

An opinion put forth by a number of pest management professionals is that the issue of homeowner use of pesticides intended for professional use only could be simply resolved by reclassifying these pesticides as Restricted Use Products (RUP). While this may sound like a simple solution, it would actually involve a great deal of bureaucracy and make purchase more difficult even for professionals.

"Once you make a product restricted use, it makes it more difficult for PMPs to purchase and use," says BASF Senior Marketing Manager Karl Kisner. "It’s easy to say, ‘Let’s make it restricted use;’ it’s a lot more complicated to actually do it, and live with the results."

Classification of the pesticide as restricted or general use is just one part of EPA’s licensing/registration process, which involves scientific, legal and administrative procedures, and assessment of:

• ingredients and the particular site or crop on which it is to be used;

• the amount, frequency, and timing of its use;

• storage and disposal practices;

• potential human health and environmental effects associated with the
product’s use;

• manufacturer test data evaluating the pesticide’s potential to cause
adverse effects on humans, wildlife, fish and plants, and possible surface
or ground water contamination; and,

• proposed label language.

After completion of these assessments, the product’s final label language is approved and the product is classified as restricted or general use.

According to EPA’s Label Review Manual, a pesticide may be labeled RUP if its toxicity exceeds specific hazard criteria: "If the agency determines that the pesticide, when applied in accordance with the label’s directions for use, warning and cautions may generally cause, without additional regulatory restrictions, unreasonable adverse effects, the agency will classify the pesticide as an RUP." Labeling a product as an RUP then limits its application to "by or under the direct supervision of a certified applicator"; limits sale to certified applicators; can cause some states to restrict or even ban its use and sale; and increases recordkeeping for the manufacturer, seller, purchaser and individual pest management professionals.

"To require these products to be labeled as RUP would put a whole different layer of regulation, if not bureaucracy, on these," says Jim Wright, regulatory supervisor for the Clemson University Department of Pesticide Regulation and chair of the ASPCRO Stewardship Committee.

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