PCO's Told To Clean Up their Yellow Pages Ads

A growing number of pest control companies have been the target of government investigations relating to the publication of "false or misleading" advertising claims. The government action, prompted by complaints from environmental groups opposed to the use of pesticides in and around the home, have centered on the industry’s Yellow Pages advertising.

"The primary concern of government regulators is that certain advertisements may downplay the risks from pesticides," says Larry Pinto, author of Regulatory Compliance: A Practical Guide for Pest Control Firms. "These ads, when used in the Yellow Pages, radio or television, company brochures, and even sales presentations, may violate EPA’s position that no pesticide is ‘safe’ because pesticides are, by their very nature, designed to be biologically active and kill various kinds of organisms."

PCOs AT RISK. "There’s no question pest control applicators are being singled out," observed Don Rivard, executive director of the New England Pest Control Association. For instance, in 1998 the Massachusetts Public Interest Research Group (MassPIRG) sent the state’s attorney general a list of 64 pest control companies that they believe published false or mislead ng advertising claims. The attorney general proceeded to issue warning letters to the companies about the alleged advertising violations.

"It hadn’t been an issue in the state until they notified the attorney general," Rivard said. "Pesticides are a major issue for these groups. If they can show they’ve done something on that front … it helps their fund-raising efforts.

"They are looking for bell-ringing issues that stimulate the public. Pesticides not only ring the bell — they sound the alarm for danger."

Of the 64 companies contacted by the state, all but six modified the language in their ads. Those that failed to respond to the warning letter have been asked to sign an Assurance of Discontinuance, a written agreement stating they will not publish any false or misleading ads in the future. The six PCOs are currently contemplating whether or not to sign the letters or take the matter to court.

Public Interest Research Groups (PIRGs) in Maryland, New York and California also have submitted what they believe to be "false or misleading" advertisements from PCOs to the attorney general’s office in their states. "Pesticides are not safe and they are the only known toxicant that we intentionally release into the environment," said Lee Johnston, environmental advocate for the Maryland Public Interest Research Group (MaryPIRG). "It’s important that PCOs who offer the use of pesticides not mask that information with misleading information."

After being contacted by a PIRG representative, the attorney general’s office must decide the best course of action to take. In Maryland, the issue is still under advisement, but in Massachusetts and New York the attorney general has sent out Assurances of Discontinuance to PCOs who refused to pull their "misleading" advertisements.

Four pest control companies in New York were asked to sign Assurances of Discontinuance. Three of the four signed, but Empire State Exterminating refused. In response to that action, on October 17, 1997, the attorney general initiated a lawsuit in New York State Supreme Court against Empire State Exterminating, a business that used advertisements containing the slogan: "Natural organic products to protect the ones you love." Accompanying the copy was a photo of a young child and a dog.

Empire State eventually agreed to sign the Assurance of Discontinuance, but not before the proceedings raised concerns among PCOs throughout the state. In accordance with an April 6, 1998, settlement agreement, approved by a State Supreme Court justice, Empire State agreed to discontinue its advertising practices and reimburse the State of New York for $9,000 in court costs. The company also agreed to provide potential customers with notices retracting the ads until a new Yellow Pages Directory was published.

A NATIONAL PROBLEM? PCOs in violation of the advertising guidelines in Massachusetts, Maryland and New York should consider themselves lucky when compared to what PCOs in California face. While signing a simple cease and desist agreement will get PCOs in these states off the hook, that’s not the case in California, where the California Public Interest Research Group (CalPIRG) sent the state attorney general a list of 144 pest control companies they believed violated advertising standards.

"The attorney general basically said ‘we have bigger fish to fry,’" said Harvey Logan, executive director of the Pest Control Operators of California (PCOC). "However, after the attorney general failed to take action, PIRG decided to take the case to court themselves."

CalPIRG and the Environmental Law Foundation filed lawsuits against four pest control companies. The complaint charged that the companies used unlawful, unfair or fraudulent safety claims in their advertisements that constitute a violation of the California Unfair Business Practices Act.

"We were frustrated about the state’s response on a number of pesticide issues and we felt we could litigate these cases in an effective manner without a tremendous amount of resources," explains CalPIRG Toxic Program Director Jonathan Kaplan. CalPIRG will settle with the four offending companies if they:

• Cease and desist running the violating ads as soon as possible.
• Provide potential customers with notices retracting the ads until a new Yellow Pages Directory is published.
• Fully refund customers who were attracted to their business by the offending ads.

The legal action taken by CalPIRG could have far-reaching implications for the pest control industry. "It could be devastating for some companies," Logan said. "Some companies have been running ads for many years and who knows what percentage of their service calls were generated from Yellow Pages advertisements."

Of greater significance is the impact the decision could have on the 140 other PCOs who are allegedly in violation of the advertising guidelines. "The attorney for CalPIRG is attempting to establish precedent, so a ruling in their favor may go against the other 140," Logan said.

PCOC has created a legal defense fund for the pest control companies that find themselves the target of litigation and has hired an attorney to monitor the case, as well as be available to counsel representatives of the four companies. "I wish all that was required was a written agreement to cease and desist (producing) the ads," Logan said. "That’s what we might have had if the attorney general had taken the case. Unfortunately PCOs in California are now looking at having to defend themselves in court. Rather than seeking compliance, the lawsuit has become punitive.

"Hopefully through the court system, PCOs will have an opportunity to address concerns raised without jeopardizing their businesses. Ironically, some of the pest control companies listed by CalPIRG do not use any pesticides in their treatments. It’s as though CalPIRG took a shotgun approach without researching the pesticides of the individual companies."

WORDING TO AVOID. The simplest way for PCOs in California and the rest of the country to avoid being the target of litigation is to carefully review the language in their Yellow Pages advertisements. Just what constitutes a false or misleading PCO advertisement? While there are no uniform federal or he National Pest Control Association (NPCA), based on concerns expressed by a number of state attorneys general, has put together the following set of guidelines:

• PCOs should not give consumers the impression that the pesticides they use or the services they offer are "safe" or imply that the pesticides they use or the services they offer are safer than the products used or pest control services offered by other companies.
• PCOs should not use misleading or confusing terminology in their advertisements.
• PCOs should not use conflicting information in their advertisements.

NPCA Director of Government Affairs Bob Rosenberg added that misleading photos or images also fall under the guidelines. He said PCOs should not use photos or images that are contradictory to label instructions. For instance, a company cannot advertise flea control services with a picture of an applicator in a short-sleeved shirt and shorts, if the label of the product the company actually uses states that long-sleeved shirts and pants must be worn when applying the product.

The use of photos and images in pest control Yellow Pages advertisements has been interpreted many ways by state attorneys general. In Massachusetts, for example, the state attorney general has gone after all pesticide advertisements that feature families and children because, in his opinion, the ads imply that pesticides are safe in front of children. Most state attorneys general have not taken such a harsh stance, only expressing concerns about PCOs who use illustrations or photos depicting a family or children in close proximity to pesticides or pesticide applications.

Because each state has its own "take" on not only the use of photos and illustrations, but advertising regulations in general, Rosenberg said that PCOs should contact their state regulatory agency or attorney general’s office with specific questions.

While the phrase "false or misleading advertising" is open to interpretation, most of the companies that have been the target of regulatory action have used variations of the following phrases in their ads:

• Safe for use around children and pests

- Environmentally sound

• EPA-approved
• Non-toxic chemicals
• Environmentally conscientious
• Low-toxic/low-odor pesticides
• Will not harm the environment
• Safe yet effective pest control
• We use only EPA-registered chemicals
• Maximum safety for children/pets/plants
• In many respects, the pest control industry is aware that it needs to clean up its ads. "We agree that certain language should not be used in advertising," Rivard said. "Words like ‘safe’ and ‘EPA-approved’ are not appropriate."

The guidelines distributed by NPCA are a proactive attempt to raise the profile of this issue on a national level among PCOs. Rosenberg said more emphasis needs to be placed on preventing misleading advertisements rather than penalizing PCOs after they appear. "We’re here to give PCOs some guidance in this area," Rosenberg said. "The problem is the regulations are not advisories. (PCOs) aren’t told they are doing something wrong until they do something wrong."

The author is assistant editor of PCT magazine.