On October 12, the U.S. Environmental Protection Agency (EPA) published an Advanced Notice of Proposed Rulemaking (ANPRM) related to its authority to require use instructions on labels of treated articles, including paint. EPA is considering issuing a rule under Section 3(a) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to clarify its authority to require pesticide-related warnings on treated articles, currently focusing on paint products and treated seeds. Conforming amendments would allow for enforcement of labeling requirements while limiting application of the treated article exemption, so only products that comply with labeling requirements would be eligible for the exemption. Paint manufacturers would be required to register non-compliant products as a pesticide.

EPA is also considering amendments that would make any use instructions for paint enforceable against professional painters, under an amendment to Section 12(a)(2)(S). Such use instructions and labeling requirements would be in addition to other risk mitigation options, such as use limits. If a paint manufacturer uses several biocides, amendments would require use of the most restrictive  label language required for any component biocide.

This ANPRM is motivated by EPA’s ongoing registration reviews of biocides, including several biocides commonly used for paint preservation. In registration review, EPA has identified risk to professional painters from spray application of paint, when paint application occurs without adequate respiratory protection. EPA proposed a labeling requirement for paints treated with diuron, with precautionary label language and use instructions, and it intends to propose similar labeling requirements for paints treated with isothiazolinones and other biocides. Canada’s Pest Management Regulatory Agency is considering similar labeling requirements.

Agency Seeks Comments

EPA is seeking comments on the ANPROM by December 11, 2023. The agency is soliciting input on whether it should propose a rule under FIFRA 3(a) with conforming amendments and/or other regulatory or administrative action to address concerns with the potential for noncompliance with labeling instructions. EPA seeks specific examples and related situations in comments.

EPA seeks comment on the following issues:

  • What should be included on a paint label to enhance clarity to ensure safe use of the paint product?
  • Is there any evidence related to harm to human health or the environment from lack of labeling instructions regarding mitigating risk from biocides?
  • Would requiring the EPA pesticide registration number on the paint label and use instructions effectively address EPA’s identified risks or should EPA consider adding additional labeling requirements?
  • Should EPA amend the treated article exemption to require registration of treated paint products as a pesticide, under Section 7 of FIFRA? If so, should EPA require the establishment registration number on the treated paint label? How many paint manufacturers would be affected?
  • If EPA establishes enforceable requirements for professional painters using treated paint, what additional information or requirements should EPA consider to enhance enforcement (e.g. additional resources, processes, etc. required by states for enforcement)?
  • EPA notes that it has no information indicating that use of paint products (or treated seeds) is not compliant with labeling instructions. EPA is requesting comment about whether there is non-compliant use and if so, to what extent are users out of compliance?

EPA also requests information regarding the import of paint treated with biocides. Under the current treated article exemption, EPA states that the treated article exemption applies to paint treated with a FIFRA-registered pesticide. EPA seeks information about imported paint volumes and whether it should implement a notice and tracking requirement for imports.

EPA also seeks to address environmental justice concerns, noting that a majority of painters are Hispanic or latino, making up 59.3% of “painter and paperhangers” and 32.3% of “painting workers,” while only comprising 18.9% of the general population. EPA seeks any data related to exposure to paint as an environmental justice concern. It also seeks information about whether the identified worker categories, “painter and paperhangers,” and “painting workers,” as used by the Bureau of Labor Statistics, are susceptible to biocide exposure.

ACA will be drafting comments for submission to EPA with input from its Preservation Product Stewardship Working Group by the comment deadline.

Legal Authority under FIFRA

EPA establishes its authority for such an amendment in Section 25(b)(2), providing EPA with authority to exempt any pesticide from registration where it is unnecessary. Applying this section, EPA created the treated article exemption by rule as a self-executing exemption in 1988, codified at 40 CFR 152.25(a). EPA explains that the exemption assumes that EPA’s assessment of the treating pesticide addresses its use and any exposure from the treated article.

EPA’s concerns relate to its Section 3(a) authority. Under Section 3(a), EPA currently cannot enforce a failure to use treated article as prescribed on a label, where a label would restrict a product due to pesticide content. The issue arose in relation to a petition for rulemaking filed by the Center for Food Safety, seeking a regulatory amendment to the treated article exemption. The amendment would require that the treated article exemption does not apply to seeds coated with neonicotinoids (a pesticide) used to control pests of a plant instead of only protecting the seed, where seed protection is the traditional use. The Center for Food Safety argued that pesticide coatings on seeds used for plant protection required unique safety considerations. EPA responded in part that it did not have authority under FIFRA Section 3(a) to enforce variation in use from labeling on a treated article. EPA notes a similar situation with treated paints.

More information on EPA’s authority to require labeling on treated articles is available on the agency website

Contact ACA’s Riaz Zaman for more information.