Pesticide Labeling Questions & Answers - Exception to Use in a Manner Not Permitted (FIFRA Sec 2ee)
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(Note: Contact your Pesticide Product Registration Ombudsman for specific label issues about a single product).
These answers are not intended to create significant new guidance or require any changes to previously accepted labeling. The Agency will contact registrants directly about how to correct problematic labels as appropriate. Changes to EPA accepted labeling will only be required in accordance with standard agency procedures. These answers are primarily based on federal law, regulations and policies implemented by EPA. States, tribes, territories, and other federal agencies may have additional requirements relevant to their jurisdictions.
- Advertising Claims
- Antimicrobial Claims
- Contract Manufacture
- Use Sites
- Definitions of Terms
- Distributor Product Labeling
- Exception to Use in a Manner Not Permitted (FIFRA Sec 2ee)
- Existing Stocks
- General Labeling
- Labeling from Web Sites
- Multiple Products Packaged Together
- NAFTA Labeling
- Pesticide Exemption (FIFRA 25B)
- Pictures and Logos
- Repacked Products
- Service Containers
- Subject to FIFRA
- Superlative Terms
- Supplemental Labeling (NOT distributor products)
8. Exception to Use in a Manner Not Permitted (FIFRA Sec 2ee)
Do all states have to comply with the FIFRA section 2(ee) opinion stating: "The Agency’s current position on greenhouse application is that in accordance with FIFRA section 2(ee) a label does not have to specify greenhouse as a site, provided the crop is on the label, in order to use the product in a greenhouse.", or are states allowed to decide that on an individual basis? LC09-0296; 3/11/10
States may further restrict the use of pesticides by enacting state requirements that do not contradict the federal labeling. For example a state could ban the use of a product at less than the labeled use rate, which FIFRA section 2(ee) normally would allow. A state could also place additional restrictions on the use of the product within the state to protect sensitive use sites such as greenhouses.
Do FIFRA 2(ee) recommendations generally include rate of application requirements or is the user bound by label directions? For example, if a 2(ee) recommendation for a product applied to a pest includes a 2% use dilution recommendation, can it be applied at 5% use dilution if 5% is an allowable rate on the label? LC09-0276; 8.13.09
A FIFRA 2(ee) recommendation may be made for a number reasons, one being the application of the pesticide at less than the label dosage, concentration or frequency. An applicator may apply the product at the use dilution listed on the label or at a lesser use dilution listed in the 2(ee) recommendation. A FIFRA 2(ee) recommendation is just that, a recommendation. An applicator has the option of applying a product at less than the use dilution listed on the label unless the label specifically prohibits such dilution. Note that for antimicrobial pesticides targeted against human pathogens, it is unlawful for any person selling or distributing these products to advertise uses permitted by FIFRA 2(ee). See 40 CFR 168.22(b)(5).
Is placing mothballs outside on the grass along a fence line to repel cats an illegal use of mothballs? LC09-0269 and LC09-0270; 6.26.09
Generally, it is unlawful to use any registered pesticide in a manner inconsistent with its labeling under FIFRA sec. 12(a)(2)(G). At present, there are no registered pesticides containing the active ingredients in moth balls that are approved for use in repelling cats. The FIFRA section 2(ee) definition of "to use any registered pesticide in a manner inconsistent with its labeling" provides for certain exceptions under which use is lawful. For example, it is not unlawful to use a registered pesticide "against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling..." This exception would not allow application of mothballs along a fence line because registered mothballs products specify the use site as "air-tight containers and storage closets." Because applying mothballs to a fence line would not be applying them to a site specified on the labeling, such use is unlawful.
Our specific question is in regards to the use of mothballs as a general animal repellent. We frequently encounter people who use mothballs (in an attic, in a crawl space, in the garden, etc.) to repel such animals as skunks, raccoons, opossums, etc. We inform them that this manner of control does not consistently work, and therefore, we cannot recommend it. We also would like to be able to tell them if using this chemical in this manner is illegal - in reference to the terminology found on any chemical/pesticide product that "It is a violation of Federal law to use this product in a manner inconsistent with its labeling." We are having trouble sorting through the information you provide on Use in a Manner Inconsistent with Its Labeling (FIFRA Sec 2ee). This question can also apply to such things as ammonia, bleach, kerosene, gasoline, etc. that people pour in or around such described areas (aside from the obvious that using flammable chemicals in such fashion is dangerous) - the ultimate question is "Is it illegal?" Please advise, as we are anxious to provide our cooperators with the most accurate information. (LC08-0190)
Using a registered pesticide like mothballs against a pest not listed on the label is legal unless (1) the pesticide is used on a site not specified on the labeling or (2) the label specifically restricts the pests against which the pesticide may be used (e.g. “for use only against ants”). This is an exception to the definition of “use of a pesticide in a manner inconsistent with its labeling” in FIFRA section 2(ee)(2) which reads in part: “…except that the term shall not include…(2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment,...” The other substances you list may be both registered for pesticidal use or available unregistered for non-pesticidal uses. While the Agency does regulate the sale and distribution of unregistered pesticides, it does not regulate the personal use of unregistered pesticides. The personal use of products that are not registered pesticides – such as ammonia, bleach, kerosene, gasoline – may be dangerous, but it is not a violation of FIFRA.
A rodenticide label says a block weighs 1 pound and is scored to be broken into 8 pieces, which means only 1 2oz piece of the block is to be used per bait placement. Most of the time, 2 oz. is too much. The manufacturer says it can be used in smaller quantities based on FIFRA 2(ee). Is this correct? (LC08-0179)
Section 2(ee)(1) allows applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency. So if the label at issue does not prohibit breaking the 2 oz pieces into smaller pieces, lesser amounts may be used.
- Section 2(ee) states an application of "a pesticide against any target pest not specified on the labeling" is allowed as long as the site is identified on the label. This text and meaning is very straightforward. However, EPA's interpretation and action in this regard appears to be based on tighter, unknown criteria or restrictions. Section 2(ee) says one thing but EPA appears to act differently. An example is Sevin / carbaryl that is labeled for turfgrass. EPA interpretation is that “turf-sited” Sevin / carbaryl cannot be used for the control of earthworm pests in turf? Why not? FIFRA Section 2(ee) text allows this usage. Thank you." (LC07-0107; 9/24/07)
Section 2(ee) allows the use of a pesticide against any target pest not specified on the labeling as long as the site is identified on the label and there are no other label restrictions that would preclude use against the pest.
- Are there any stipulations on who can make a FIFRA 2(ee)
recommendation? Can a user make a recommendation? Can the
manufacturer make a recommendation to use a pesticide in a manner that would
be allowed under 2(ee)? Is there any entity that cannot make a 2(ee)
recommendation? (LC06 - 0056)
On October 22, 1981, EPA published a notice in the Federal Register (44 FR 51745) entitled "Advocacy of Pesticide Uses Which Do Not Appear on Registered Pesticide Label; Statement of Policy" which addresses who may legally recommend or advertise uses under section 2(ee)(1-5) of FIFRA. The notice states the any person can make a recommendation under FIFRA section 2(ee)(1-5). A subsequent FR Notice (51 FR 19174) dated May 28, 1986, amended the Agency's previous position by stating that persons may not make claims under section 2(ee) for antimicrobial pesticide products targeted against microbial human pathogens.
- Regarding FIFRA section 2(ee) recommendations; is there a recommended
expiration period (e.g., 1 year, 5 years)? Does this need to be added to the
There is no recommended expiration period for a FIFRA section 2(ee)(1)-(5) recommendation.
- What is the proper/legal way that FIFRA section 2(ee) bulletins can be
distributed by extension services, universities or others? Can they be
displayed with the product? (LC06-0011)
FIFRA section 2(ee) bulletins are recommendations, allowed by section 2(ee)(2) of FIFRA, advocating use of a product on a pest not specified on the labeling if the pest is on a site listed on the label and the agency has not required labeling that only allows use on specified pests. FIFRA section 2(ee) bulletins may be distributed by virtually any means; i.e., through extension personnel, industry representatives, at the point of sale, displayed with the product, or downloaded off the Internet, provided the bulletin is factually correct and conforms to the restrictions of section 2 (ee). EPA does not allow 2(ee) bulletins for antimicrobial products with public health claims (i.e., targeted against human pathogens, 40 CFR 168.22(b) (5)) or other products with such claims. FIFRA section 2(ee) reads as follows:
"(ee) TO USE ANY REGISTERED PESTICIDE IN A MANNER INCONSISTENT WITH ITS LABELING.-The term ''to use any registered pesticide in a manner inconsistent with its labeling'' means to use any registered pesticide in a manner not permitted by the labeling, except that the term shall not include (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable ad-verse effect on the environment, (3) employing any method of application not prohibited by the labeling unless the labeling specifically states that the product may be applied only by the methods specified on the labeling, (4) mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited by the labeling, (5) any use of a pesticide in conformance with section 5, 18, or 24 of this Act, or (6) any use of a pesticide in a manner that the Administrator determines to be consistent with the purposes of this Act. After March 31, 1979, the term shall not include the use of a pesticide for agricultural or forestry purposes at a dilution less than label dosage unless before or after that date the Administrator issues a regulation or advisory opinion consistent with the study provided for in section 27(b) of the Federal Pesticide Act of 1978, which regulation or advisory opinion specifically requires the use of definite amounts of dilution. "
- Is there a required permit/process for an applicator to use, or a dealer
to recommend the use of, a pesticide in accordance with FIFRA Section 2(ee)?
There is no required permit or process to obtain or undergo in order to use a product or recommend use of a product under Section 2(ee)(1)-(5) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).