Damian Williams, the United States Attorney for the Southern District of New York, and Lisa F. Garcia, Regional Administrator of the U.S. Environmental Protection Agency (“EPA”), announced today that the United States has filed and simultaneously settled a counterclaim against TZUMI INNOVATIONS, LLC (“TZUMI”) for illegally distributing and selling millions of products claiming to have antimicrobial properties in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) during the height of the COVID-19 pandemic. TZUMI sold these products without submitting them to EPA for registration, a mandatory process that allows EPA to assess the safety and effectiveness of the products. TZUMI specifically targeted lower-income customers for sale of one of its products, “Wipe Out! Wipes.”
The proposed stipulation and order of settlement (“settlement”) agreed to by TZUMI includes payment of a $1.5 million civil penalty, the largest FIFRA civil penalty ever obtained in a judicial settlement and one of the largest FIFRA penalties obtained by EPA in any context.
U.S. Attorney Damian Williams said: “At the height of the pandemic, Tzumi misled consumers and retailers and exposed the public to pesticide products that had not been found by EPA to be safe and effective. It compounded matters by targeting low-income customers, who face disproportionate environmental burdens. Today’s settlement ensures that Tzumi pays the price for its misconduct. We will continue to pursue justice in environmental enforcement matters.”
EPA Regional Administrator Lisa F. Garcia stated: “Consumers must be provided accurate information about pesticide products and merchandise such as those items involved in this case, which must be properly labeled and registered with EPA to protect public health. This settlement demonstrates EPA’s commitment to hold companies accountable that violate critical environmental laws and includes a provision where Tzumi Innovations, LLC will develop an extensive campaign to inform the public and retailers about the appropriate uses for the products in question.”
The counterclaim filed in Manhattan federal court today alleges that in 2020, TZUMI began to sell three product lines—Wipe Out! Wipes, Wipe Out! Multi-Surface Wipes, and Wipe Out! Multi-Surface Decontaminant Spray—in an effort to respond to the public’s increased demand for disinfectant products during the COVID-19 public health crisis. TZUMI expressly stated that it intended Wipe Out! Wipes to be sold to “lower income level customers.”
None of these supposedly antimicrobial products were registered with EPA under FIFRA. FIFRA prohibits the distribution or sale of pesticides—including products claiming to have antimicrobial properties intended to be used to disinfect surfaces—that are not registered under FIFRA, absent exceptions to registration not applicable here. Registration is a critical step in ensuring the efficacy and safety of antimicrobial pesticides: Among other things, during registration, EPA reviews the application information and performs a rigorous, comprehensive scientific assessment of the product, including the product’s active and inert ingredients and the proposed uses of the product, to ensure that the product is effective and has no unreasonable adverse effects on human health or the environment when used for its intended purpose and according to labeled directions.
TZUMI failed to register the Wipe Out! products with EPA, even though its labeling made antimicrobial pesticidal claims suggesting that these products were intended to be used to disinfect surfaces and TZUMI had knowledge that the products would be used as a pesticide, as that term is defined in FIFRA. Consistent with TZUMI’s claims, retailers then sold these products on their websites or in their physical stores in the same sections in which they included properly registered antimicrobial disinfectants, like Clorox and Lysol products. Reviews on retailers’ websites demonstrate that consumers in fact were misled into believing that Wipe Out! Wipes in particular could be used as an antimicrobial pesticide to disinfect surfaces.
TZUMI’s actions put the public—including the low-income consumers that TZUMI targeted—at risk of using products that failed to work as claimed or that were unsafe. Low-income communities in general bear a disproportionate burden of environmental exposures and public health risks, and selling unregistered pesticides to these communities raises particular concerns of environmental justice.
In the settlement lodged with the federal court today, TZUMI admits, acknowledges, and accepts responsibility for the following, among other things:
- In 2020, Tzumi introduced new product lines to the domestic household market in an effort to respond to the public’s increased demand for disinfectant products during the COVID-19 public health crisis. The new products Tzumi distributed or sold included Wipe Out! Wipes, Wipe Out! Multi-Surface Wipes, and Wipe Out! Multi-Surface Decontaminant Spray.
- Wipe Out! Wipes, Wipe Out! Multi-Surface Wipes, and Wipe Out! Multi-Surface Decontaminant Spray have never been registered as pesticides with EPA under Section 3 of FIFRA, 7 U.S.C. § 136a.
- From at least August through December 2020, Tzumi distributed 4,895,184 units of Wipe Out! Wipes to Home Depot bearing a label stating on the front in part “Wipe Out Antibacterial Wipes” and “KILLS GERMS FAST*” and on the back in part “To decrease bacteria on the skin that could cause disease”; “Cleans and sanitizes”; “KILLS 99.9% OF GERMS*”; “*Escherichia Coli (E. coli), Staphylococcus Aureus (Staph), Candida Albicans”; and “Use it Anytime, Anywhere.”
- From October through November 2020, Tzumi sold 472,281 units of Wipe Out! Multi-Surface Wipes bearing a label that displayed the words “active ingredient” and “purpose: antibacterial” and graphics of household appliances, bathroom fixtures, and surfaces.
- From February 2021 through April 2021, Tzumi sold 62,796 units of Wipe Out! Multi-Surface Decontaminant Spray that stated on its label “Controls Algae Harmful Bacteria” (sic) and “… spray directly on the surface and let stand … ten minutes for antimicrobial response.”
The settlement requires TZUMI to pay a $1.5 million civil penalty and to issue corrective statements advising consumers and retailers of the unregistered status and limited appropriate use of the Wipe Out! products. It also requires TZUMI not to distribute or sell such unregistered pesticide products in the future.
The settlement remains subject to a period of public comment and Court approval. Notice of the proposed settlement will be published in the Federal Register and the public will have the opportunity to submit comments on the proposed settlement for a period of at least 30 days before it is submitted for the Court’s approval.
U.S. Attorney Williams thanked EPA Region 2’s attorneys and program staff for their critical work on this case.
No comments:
Post a Comment