Missing an ingredient?

Written on: April 1, 2024 by Nicholas Georges

Having worked in the industry for more than 15 years, I can’t help but notice the marketing claims on products as I walk the aisles of my local grocery store. Recently, I’ve seen more frequent claims about what ingredients a product doesn’t use, such as “BPA free,” “No GMOs” and “Phthalate free.”

For most products, these claims fall under the jurisdiction of the Federal Trade Commission (FTC) and the Guides for the Use of Environmental Marketing Claims,i better known as the Green Guides. The 2012 version added a section for “free-of” claims,ii which advise that, even if true, claims that a product is “free-of” a substance may be deceptive if:

1. The item contains substances that pose the same or similar environmental risk as the substance not present, or
2. The substance has not been associated with the product category.

The Green Guides also clarify that a “free-of” claim may, in some circumstances, be non-deceptive even though the product contains a “trace amount” of the substance. Since these statements can be confusing, HCPA submitted comments to the FTC last year requesting updated examples of “free-of” claims for inclusion in the next update of the Green Guides.

While the FTC manages “free-of” marketing claims for most products, the U.S. Environmental Protection Agency (EPA) evaluates “absence of an ingredient” claims for products registered under the Federal Insecticide, Fungicide & Rodenticide Act
(FIFRA). Similar to the FTC, the EPA will not allow false or misleading statements;iii however, in certain instances, where information indicates that these types of claims are not misleading, the EPA will allow these types of claims.

Under FIFRA, the EPA reviews a product’s master label as part of the registration process. As part of the EPA’s Label Review Manual,iv the EPA has provided limited guidance since the early 2000s on claims about the absence of an ingredient. However, this guidance, and subsequent updates, have focused on misbranding and did not provide a good pathway for registrants to utilize such claims.

The EPA has approved plenty of pesticide registrations containing a variety of “absence of ingredient” claims on a case-by-case basis; however, the regulated community has long sought clarity on whether and how “free-of” claims can be made and approved by the EPA.

To assist companies, the EPA recently publishedv new guidance for commonly proposed claims, including “bleach free,” “phosphate free” and “DEET free.”

Regarding “bleach-free” claims, the EPA understands that companies typically do not say “bleach-free” for safety reasons, but to inform consumers in situations where bleach may cause damage (e.g., clothing). However, to accurately make this claim, companies should avoid chlorinated chemistries that, when added to a solution, can break down into free available chlorine.

Phosphates are not typically listed as active ingredients, so “phosphate-free” claims are meant to inform consumers that this substance is not an inert ingredient in a product’s formulation since inert ingredients aren’t listed on the product label. Further, some States have restricted the use of phosphates and, in the case of New Yorkvi, there are labeling provisions, so the EPA would not consider such a claim to be misleading (provided that the product does not contain any phosphate[s]).

For companies that manufacture bug sprays, the EPA will also allow an “absence of DEET” claim as long as it’s accompanied by a qualifying statement such as, “Not a safety claim.” The EPA recognizes that consumers have concerns with DEET (N,N-Diethyl-meta-toluamide), despite it being used for many decades and its proven safety when used according to directions on the label.

Within this guidance, the EPA also discusses its applicability to minimum risk pesticides, or 25(b) products. While it has exempted minimum risk pesticides that meet all requirements from FIFRA registration, many States still have some type of registration.vii However, this exemption provides a provisionviii that requires the product to “not include any false or misleading labeling statements…” Accordingly, to the extent that an “absence of an ingredient” claim is not false or misleading, a “free-of” claim would not disqualify an otherwise qualified minimum risk pesticide from exemption.

HCPA has been working with the EPA on this guidance for several years and we are pleased to see its publication to include certain clarities. For more information on either the EPA’s guidance or the next update to the FTC’s Green Guides, please contact me at ngeorges@thehcpa.org. SPRAY

i 16 CFR Part 260
ii 16 CFR 260.9
iii 40 CFR 156.10(a)(5)
iv link
v link
vi NY Environmental Conservation Law §35-0105
vii 40 CFR 152.25(f)
viii 40 CFR 152.25(f)(3)(iv)