New Pesticide Laws Impact Retailers

April 05, 2001

Farrell Fritz, P.C. recently hosted a breakfast briefing entitled “Pesticide Storage and Handling – What the Retailer Needs to Know.” Robert E. Sandler, a partner in the Real Estate Practice area, welcomed the more than 50 attendees who represented retail establishments ranging from small garden centers to large chain stores. Miriam E. Villani, counsel heading the Firm’s Environmental Practice Group, addressed the retailers before introducing the keynote speaker, Vincent A. Palmer, Supervising Pesticide Control Inspector, New York State Department of Environmental Conservation (DEC), Region 1. Mr. Palmer stressed the importance of protecting Long Island’s sole source aquifer from pesticide contamination, and now retailers play a role in that protection.

How Can The Retailer Identify a Pesticide?

A pesticide is any substance or mixture of substances marketed to prevent, destroy, repel or mitigate a pest, regardless of the ingredients. In New York State, pesticides that are offered for sale must be registered with the State. Retailers face fines of $5,000 for the first container and $10,000 for each additional container of unregistered pesticides that they offer for sale. There is one type of pesticide, known as a “minimum risk pesticide,” that does not require registration with the State. Products offered for sale as “minimum risk pesticides” must have labels that identify (by name and percent) its active ingredients, as well as identify (by name) its inert ingredients. Both the active and inert ingredients must appear on corresponding lists relating to exempted products that are published by the EPA.

Generally speaking, if a product’s label includes an EPA registration number, it is a registered pesticide. If it does not include such a number, it still may be a pesticide, though unregistered. The retailer is advised to contact every manufacturer of products it suspects to be pesticides, and request copies of that manufacturer’s certification of New York State registration of its products. It is important that retailers match the registration numbers with the individual products, as many product names are similar. Retailers are further advised that any manufacturer that fails to send a required proof of registration should be told to take its products back from the retailer.

How Does the Retailer Handle Spills and Damaged Pesticide Containers?

Retailers are cautioned to take steps to prevent damage to pesticide bags and containers. Pesticide bags should not hang over pallets, and preferably should be protected from carts by barriers. Ripped bags cannot be overpacked and sold. The original label must be completely legible on all containers offered for sale. Retailers are advised to follow the directions for handling set forth on the label of the product, to avoid accidental dermal absorption and respiratory exposure by employees and customers in the case of a spill. DEC assesses penalties of $5,000 per violation for improper handling and storage of pesticides.

How Does The Neighbor Notification Law Affect Retailers?

Retailers must comply with the new Neighbor Notification Law which became effective March 1, 2001 and requires (1) posting of visual notification markers for residential lawn applications; (2) posting of signs at certain retail establishments; and (3) neighbor notification of certain commercial lawn applications. The Law requires any retailer that sells general use pesticides labeled for commercial or residential application uses to post a notice wherever it displays lawn and garden pesticides for sale. The notice must inform purchasers, including homeowners, that when they apply lawn care pesticides to residential properties, they must post visual notification markers along the perimeter of any treated area over 100 square feet. The notice provides further details regarding the instructions to be included on the notification markers. The DEC will bring enforcement actions against homeowners, as well as retailers, for violations of this law. A maximum $250 fine for each violation may be levied against violators.

Contact the New York State Department of Environmental Conservation

While the DEC encourages retailers to contact its offices with questions concerning pesticides, retailers that are uncomfortable doing so should feel free to contact Miriam E. Villani of Farrell Fritz, P.C. at 516-227-0607 with their questions.

This advisory was written by Miriam Villani, Esq., counsel to the firm, and Elaine Sammon, an associate in the Environmental Department. Ms. Villani practices environmental law, handling a broad range of environmental matters including the defense of civil and criminal actions brought pursuant to the New York State Environmental Conservation Law and various federal environmental laws. Ms. Villani counsels clients in transactional matters including the coordination of environmental assessments as part of the due diligence process, and the drafting and negotiating of environmental representations and warranties. She negotiates the terms of voluntary cleanup agreements, prospective purchaser agreements and counsels clients with regard to Brownfields redevelopment.

If you have any questions about this advisory, or about environmental law, please contact:

Miriam E. Villani
(516) 227-0607
mvillani@farrellfritz.com

Farrell Fritz, P.C.
EAB Plaza
Uniondale, NY 11556-0120
(516) 227-0700
(516) 227-0777 facsimile
www.farrellfritz.com

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