In 2020, the COVID-19 pandemic raised many questions we thought we would never have to consider: How many times should I be washing my hands every day? Is it safe to touch a door handle? Should I be disinfecting my packages and groceries? While we all worried about our personal safety, federal and state environmental agencies grappled with reacting to increasing demand for products that aimed to help consumers resolve these questions and claimed an ability to kill viruses, including COVID-19. As a result of state and federal enforcement measures, many unproven products were pulled from the market, and some retailers and suppliers faced penalties. For many, the crackdown on products claiming to eradicate COVID-19 highlighted issues surrounding a lightly publicized environmental issue: regulation of antimicrobial pesticides. In fact, even before the pandemic, federal and state agencies have been increasing enforcement efforts on antimicrobial pesticides, and in some cases, the penalties associated with these enforcement efforts are surprisingly high.

At the federal level, the Federal Insecticide, Fungicide, & Rodenticide Act (FIFRA) bars distribution of an unregistered pesticide and broadly defines pesticide to include "any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest." See 7 U.S.C. Section 136(u).  "Pest," in turn, is broadly defined to include "any insect, rodent, nematode, fungus, weed, or any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro-organism …" but to exclude products, like hand sanitizers or wipes, that are intended for use on humans or animals. A pesticide, therefore, includes any product that intends to "mitigate" any microbial organism on an inanimate surface. The intent for a product's end use is marked by any "pesticidal claims" made in promotional materials. No other environmental statute so squarely turns on a producer's intention.