Table of Contents

• A. Prohibition Against Advertising That Pest Control Services or Products Are Safe, Nontoxic and Will Not Cause Any Harmful Effects to Human, Pets, Other Non-target Species and the Environment.
• B. Prohibition Against Claims Of Environmental Benefit
• C. Preclusion of Claims Relating To Registration Of Pesticides
• D. Prohibition Of Unqualified Comparative Claims About The Safety Or Toxicity Of An Applicator’s Pest Control Services Or Pesticides Used

INTRODUCTION

In 1996, the Attorney General commenced an initiative to address the problem of deceptive advertising of structural pest control services in Yellow Pages directories throughout New York State. Advertisers in this category typically specialize in the handling of "indoor" pests, rather than lawn and garden pests. The initiative is a logical outgrowth of the past actions of the Attorney General's Environmental Protection Bureau against pesticide manufacturers, retailers and applicators which have published advertisements containing deceptive claims about the safety or environmental benefits of pesticides. Rather than targeting only a few violators, however, this initiative represents a comprehensive effort to eliminate deceptive advertising of the safety or environmental attributes of pesticides by pest control services in New York State. As a result of the initiative, consumers will no longer be misled by inappropriate claims made by a minority of pest control services and all such services can compete on a level playing field.

This report describes the legal and factual basis of the Yellow Pages initiative and the way in which it was conducted. This report is intended to provide pest control services with helpful information necessary to ensure that their advertising does not run afoul of the law.

PESTICIDES AND SAFETY

Pesticides are substances used to kill, repel or otherwise control pests. In general, the toxic capacity of pesticides is not narrowly limited to the target pests. Thus, the same pesticides which are marketed to kill insects or rodents may have the potential of harming human beings, pets and/or the environment.

Pesticides may cause both acute and chronic health effects. Acute health effects are those which appear shortly after exposure. Examples range from headaches, dizziness and nausea, to coma and death in the most extreme cases. Chronic effects generally result from long-term exposure to low levels of toxic chemicals, but also may arise from short-term exposures. Chronic health effects may not be apparent until months or years after exposure. For example, some pesticides may be carcinogenic. By the time the symptoms of a chronic effect become apparent, it may be difficult or impossible to prove that they were caused by a particular pesticide exposure.

Several chemicals used as active ingredients* in insecticide products for indoor use are toxic to the nervous system, including organophosphates (e.g. chlorpyrifos or Dursban), methyl carbamates (e.g. bendiocarb and propoxur) and pyrethroids (e.g. cyfluthrin and cypermethrin). Others have been associated with cancer; the U.S. Environmental Protection Agency ("EPA") lists propoxur as a probable human carcinogen and hydramethylnon, piperonyl butoxide**, and cypermethrin as possible human carcinogens. Other adverse effects associated with the active ingredients in household pesticides include birth defects, liver and kidney damage and irritation of the skin, eyes, nose, throat, lungs and digestive system. As explained in more detail below, it is difficult to identify what additional adverse effects may be caused or contributed to by the "inert" ingredients in pesticides because these ingredients are generally not identified on the product label and their identity is treated as confidential business information by EPA. According to EPA, the vast majority of "inerts" have simply not been adequately evaluated for potential health effects.

Children may be particularly susceptible to the effects of pesticide poisoning. Every year, Poison Control Centers across the United States receive thousands of reports about children exposed to pesticides. Furthermore, EPA’s registration process has not adequately evaluated the potential effect of pesticides on children. As a result, in the Food Quality Protection Act of 1996 (P.L. 104-170), Congress required EPA to develop new methods to evaluate the risks posed by pesticides to children. Other populations at special risk include the elderly, the infirm, and those who might be exposed to toxic substances from other sources.

Although all pesticides marketed must be registered with EPA, registration is not a guarantee of safety. In fact, EPA has officially stated that no pesticide -- restricted use or general use -- can be considered safe.1 According to EPA: "All pesticides are toxic to some degree. This means they can pose some risk to you, to your children and pets...."2 Thus, although some pesticides may pose lesser risk than others, the full potential for health risks associated with most pesticides remain uncertain.

When the EPA registers (permits to be sold) a pesticide, the agency does not decide that the product poses no environmental or health threats. Rather, the EPA is required to register a pesticide if it determines that the product will not generally cause, according to federal pesticide laws, "unreasonable adverse effects" to public health or the environment. The determination of such "unreasonable" adverse effects requires, by law, consideration of economic, social and environmental benefits as well as costs. Thus, the registration decision is based on balancing the benefits against the risks. If the benefits are judged by EPA to outweigh the risks, then the pesticide may be registered. If new information indicates that a pesticide may pose a more serious threat than was realized, the balance may change, and EPA may place conditions on that product's use or take it off the market by temporarily suspending or permanently canceling its registration. In order to fully cancel a pesticide registration, EPA may be required to complete a lengthy and complex review process, a costly endeavor for the agency. As a practice, EPA has often allowed existing stocks to be used up in exchange for voluntary withdrawal of the pesticides from the market.

Under its regulatory authority, the EPA may request additional data from pesticide registrants at any time such data is deemed necessary. As part of a continuing "reregistration" process, the EPA is currently reviewing data on the health and environmental effects of many pesticide active ingredients to decide whether these products should continue to be used. Products containing those ingredients were registered years ago under less rigorous testing guidelines than are currently in effect. As this limited review proceeds, thousands of pesticides containing active ingredients still under review remain on store shelves until the EPA decides whether or not to restrict or even eliminate their use. Unfortunately, Congressional reports estimate that EPA's verdicts may not come in for many more years to come -- sometime in the next century.

In addition, EPA's "registration" does not look equally at the active and inert ingredients. The so-called "inert" ingredients are chemicals formulated in the product for some reason other than direct pesticidal activity. For instance, they may deliver the active ingredients to the target, preserve them or make them easier to apply. These "inert" ingredients usually are not even identified on the product label. As reported in "The Secret Hazards of Pesticides: Inert Ingredients," a report issued by the Attorney General's Office, the "inerts" in some products may cause serious health effects. A report by EPA's Inspector General indicates that, for hundreds of registered pesticides, even the EPA does not have an accurate accounting of the "inert" ingredients.3 Because pest control services, like the general public, are ignorant about the inert ingredients in the pesticides they use, they have no basis for making unqualified representations with regard to the safety or environmental impacts of those pesticides.***

Because of the toxic nature of pesticides, it is inaccurate to describe pesticides or services involving their use as safe. While many pesticide applicators may offer certain non-pesticide services such as physical measures to prevent the introduction of pests into the household, advertisements which contain claims of safety can be interpreted as applying to the pesticides used in the services as well. Furthermore, it is inaccurate and potentially misleading for a pest control service to describe itself as "environmentally conscious" or "environmentally responsible" because of the overbroad and unqualified nature of these claims as well as the potential for pesticides to cause adverse effects on the environment. Therefore, unless a pest control service does not use pesticides in its business, claims of safety or environmental benefit are inherently misleading.****

The potential for the presentation of misleading and inaccurate information is particularly significant in the Yellow Pages context, where advertisers typically try to catch the consumer's eye with a few words in a small advertisement. As a result, advertisers tend to make broad unqualified claims in advertisements, such as "safe" or "environmentally responsible", without any explanation or qualification. To the extent such companies use pesticides in their practices, the advertisements have an unacceptable potential to mislead.

Deceptive pesticide advertising poses the additional danger that the customer of pest control services may literally be a consumer of the pesticides being applied. A child may actually eat food or other objects sprayed with pesticides or put contaminated fingers in her mouth; a pesticide may enter the body through the skin when an adult or a child plays in an area which received a pesticide treatment; and the pesticide product may be inhaled during or after application. Advertisements which contain inaccurate, incomplete or misleading information regarding the toxicity of pesticides being used may lull consumers into a false sense of security, increasing their exposure to dangerous poisons with the potential to cause serious adverse health effects to people, pets and the environment.

THE APPLICABLE LAW

New York law prohibits the false or misleading advertising of any products or services. (General Business Law, §§ 349, 350.) In New York, the relevant legal test is whether the advertisement at issue has the capacity or tendency to mislead.4 The falsity of an advertisement is determined by the overall impression which it is likely to have on the consumer.5 The overall impression upon the consumer results not only from what the advertisement explicitly states but also from what is reasonably implied.6 False advertising is defined to include advertising which fails to disclose material facts.7 Accordingly, advertisements for pesticide services may also be deceptive to the extent they omit relevant information regarding the risk of adverse health effects, thus enhancing the overall impression that the products used are safe.8 Furthermore, claims that are literally true and claims which are subject to more than one interpretation, one of which is false, are considered deceptive if the overall impression is misleading.9

Due to the inherently toxic nature of pesticides and the need for caution in their use, federal law prohibits manufacturers of pesticides from labeling their products as safe even when accompanied by such qualifying phrases as "when used as directed." 40 C.F.R. 162.10(a)(5). Federal law also requires the disclosure of some possible toxic effects to humans, animals, plants and the environment in the form of warnings and cautionary statements on the labels of the pesticide containers. 40 C.F.R. 160.10 et seq. While consumers who use pesticides to control pests receive these warnings before they buy the pesticides at retail, customers of pest control services may never see the pesticide containers. Furthermore, although New York law requires that pest control services supply consumers with pesticide labels prior to application, such warnings usually come too late because the false advertising has already misled the consumer into contracting for services he understands to be safe and non-toxic.

Federal agencies also prohibit misleading environmental marketing claims. Under guidelines issued by the Federal Trade Commission ("FTC") regarding environmental marketing claims, the FTC explicitly cautions against the use of "unqualified general claims of environmental benefit", which "depending on their context, may convey a wide range of meanings to consumers." Such claims include "environmentally friendly", "environmentally safe" or "eco-safe." 40 C.F.R. § 260.7(a).

PRIOR EFFORTS OF THE ATTORNEY GENERAL TO ADDRESS DECEPTIVE ADVERTISING OF PESTICIDES AND PESTICIDE SERVICES

After discovering that the ChemLawn Services Corporation, the country's largest lawn care company, was misleading the public as to the safety of its products, the Attorney General's office sued the company for false advertising - one of the first false advertising lawsuits ever filed in the nation against a pesticide application company. In settlement, ChemLawn agreed to pay $100,000 in costs, and, in addition to other restrictions, was prohibited from advertising that its lawn care treatments are "safe," "non-toxic," or harmless. Certain claims regarding the relative risk of its products were also barred, unless substantial disclosure of the limits and significance of the comparison were included with the claim.

The Attorney General's office subsequently successfully pursued several pesticide applicators, formulators and manufacturers for making similar deceptive claims. The office entered into Assurances of Discontinuance with LESCO, DowElanco, Chevron Chemical Company and Monsanto, Inc., all large pesticide manufacturing companies, to halt their advertising claims regarding the safety of their products. The Attorney General found that these advertisements, which were targeted at both pest control professionals and the general public, contained claims which falsely equated EPA registration of pesticides with a safety assurance, and made a variety of other deceptive claims about the health and environmental safety of pesticide products. These settlements included injunctive and monetary relief.

Along the way, the Attorney General's office has also obtained Assurances of Discontinuance from a number of smaller businesses, addressing similarly deceptive claims for pesticides and pest control services. The office has addressed claims in both print and broadcast media. Some of these matters have been brought to the Attorney General by concerned citizens, some by competitors concerned about the unfair business advantage gained by those making the claims, and others have arisen as a result of our own observations.

DESCRIPTION OF THE YELLOW PAGES INITIATIVE

The Yellow Pages initiative was designed to meet three primary goals, all of which serve the public interest. One fundamental goal is to ensure that consumers are provided with accurate information about the pest control services they are obtaining for use in their homes. As with the Attorney Generals' prior efforts in non-pesticide areas, the Attorney General is fulfilling his responsibility to ensure that the public is protected from misleading promotion of consumer products or services.

The second goal is protection of public health and the environment. When consumers are misled about the safety or environmental attributes of pest control services to be used in their homes, they may not take the necessary precautions to prevent potentially unhealthful exposure. For example, if customers believe that the pesticides being used on their houses are "safe", they may not take the necessary steps which they might otherwise deem appropriate to ensure that, for instance, small children and pets are not exposed to the pesticides being applied.

The third goal is to ensure that all pest control operators compete on a level playing field by complying with the legal standards for advertising. In this initiative, the Attorney General has acted systematically to ensure that all who engage in false advertising in Yellow Pages directories are required to modify all of their advertisements.

It must be emphasized that the overall objective of this initiative is to eliminate deceptive claims, not to prevent truthful advertisement of pest control services. As explained in more detail below, the Attorney General does not seek to prevent truthful and complete discussion of the benefits of a particular businesses' services in their advertisements, so long as such advertisements do not mislead the public.

The initiative was structured in such a way to achieve compliance with the laws regarding deceptive advertising in a fair and equitable manner. As an initial matter, the Attorney General surveyed Yellow Pages directories from across the state, identifying those advertisements which contained deceptive claims. Although most advertisements for pest control services were not objectionable, many advertisements contained overbroad, inaccurate and/or misleading claims of safety or environmental benefits. These included: safety claims, such as "safe", "safe to children, pets and plants" and "your safety is our priority"; claims of environmental benefit, such as "environmentally responsible" and "environmentally conscious"; and misleading claims implying that the use of registered pesticides established the safety of the pesticides, such as "EPA approved." In evaluating the advertisements, the Attorney General considered the total impression created by the text and any accompanying pictorial representations. For example, advertisements included within the scope of the initiative included an advertisement with the phrase "natural organic products to protect the ones you love" accompanied by a photograph of a child and dog; and an advertisement which featured a globe icon adjacent to the logo "guardians of the environment."

Of the hundreds of advertisements reviewed statewide, approximately one hundred were identified as potentially deceptive. The businesses placing these advertisements were then invited to one of seven regional meetings held across the state. Meetings were held in Albany, Buffalo, Syracuse, Binghamton, White Plains, Long Island and New York City. At these meetings, each of which was attended by approximately 5 to 20 pest control services, the basis and structure of the initiative was explained. Each attendee had the opportunity to learn precisely why their advertisements were identified as deceptive. At the close of each meeting, each attendee was provided with a copy of a draft Assurance of Discontinuance which would be acceptable to the Attorney General to settle this matter. The Assurance of Discontinuance obligates each business to discontinue its deceptive advertising practices regarding pesticide services. Businesses which were unable to attend any of the seven regional meetings were provided with a copy of the Assurance of Discontinuance by mail.

The vast majority of the companies invited to the meetings signed Assurances of Discontinuance in which they committed to terminate any deceptive advertising practices regarding pest control services. The Assurance of Discontinuance, which is described in more detail below, applies to advertising in any context, including newspapers, billboards, company stationary, and company vehicles in addition to Yellow Pages directories.

The companies which failed to execute and return an Assurance of Discontinuance became targets for further legal action. In July 1997, notices of intent to sue were sent to four companies whose advertisements included safety claims, notifying each business that the Attorney General would file suit against it. Three of the four recipients of these notice letters subsequently agreed to change their advertisements.

On October 17, 1997, the Attorney General commenced a lawsuit in New York State Supreme Court against Empire State Exterminating, Inc., a business which used advertisements containing the slogan "natural organic products to protect the ones you love", accompanied by a photo of a small child and dog. In accordance with an April 6, 1998 settlement agreement, approved by a State Supreme Court judge, Empire State agreed to discontinue its advertising practices and reimburse the State for $9,000 in costs. Under this settlement, Empire State is also required to provide potential customers with notices retracting the claims in its Yellow Pages advertisements until a new Yellow Pages is issued without the deceptive claims at issue.

In the future, the Attorney General will continue to monitor advertising of pest control services in all advertising media and take enforcement action against other companies which refuse to voluntarily discontinue their deceptive advertising practices by executing and signing an Assurance of Discontinuance. In addition, the Attorney General will take enforcement action against any companies which might violate the terms of the Assurance of Discontinuance.

DESCRIPTION OF ASSURANCES OF DISCONTINUANCE

The Assurances of Discontinuance signed by the businesses with deceptive Yellow Pages advertisements are consistent with those obtained in the past by this office. Thus, these Assurances ensure that pesticide applicators do not make claims for pesticide products which the manufacturers of those products cannot make themselves. The Assurances will ensure that pest control services do not make deceptive safety and environmental claims in their advertisements in all media in the future. In addition, the Attorney General will use the terms of the Assurance of Discontinuance to guide enforcement action against all other participants in the pest control industry which use pesticides in their services, regardless of whether or not such businesses have executed an Assurance of Discontinuance. To assist companies with compliance with the applicable law and with the terms of the Assurances of Discontinuance, the key operative terms of the Assurances are described in detail below.

A. Prohibition Against Advertising That Pest Control Services or Products Are Safe, Nontoxic and Will Not Cause Any Harmful Effects to Human, Pets, Other Non-target Species and the Environment.

The first prohibition contained in the Assurance is against blanket, unqualified statements of safety or absence of any environmental impacts. This paragraph bars a business from representing, directly or by implication, that:

pest control services/methods and/or pesticide products used by Respondent are safe, non-toxic and will not cause any harmful effects on humans, pets, other non-target species and the environment.

Appropriately qualified and true representations about the degree and type of risk associated with the advertiser’s pest control services are not prohibited so long as such statements can be substantiated:

Nothing in this paragraph shall preclude Respondent from making representations regarding the degree and type of risk associated with its pest control services/methods and/or pesticide products, if such products are used in accordance with all label precautionary statements and directions, so long as such representations are factually accurate, clearly defined as to the risk(s) considered and substantiated, upon request, under paragraph 11 herein. Substantiation shall include the identification of the sorts of hazards (i.e. acute and/or chronic toxicity) and exposure (i.e. route, duration and magnitude) considered. Respondent shall not make any such representation if it is inconsistent with any portion of the statement required as part of the EPA registration process for that pesticide and as such statement may be subsequently amended.

However, any advertisements which describe the degree or type of risk associated with a company’s pest control services, when used properly, must be clearly defined as to the specific risk considered (e.g. neurotoxicity, carcinogenic effect, etc.). Furthermore, no statements regarding the degree or type of risk associated with pest control services may be made if such statements are inconsistent with any portion of the statement required as part of the EPA registration process for the pesticides being described. If the advertiser chooses to make such statements, it is the advertiser’s responsibility to assure their validity.

In general, the type of advertising claim permissible under this paragraph is limited to specific claims regarding the use of specific pesticides. For example, advertisements allowed under this paragraph would include a statement, if true, that the advertiser treats a certain type of pest solely with a product which has no neurotoxic effects. Likewise, absent any other misleading information, the Attorney General would not take action against a business which places an advertisement which states that a specific termicidal product will eliminate termites without adverse effects on other animal species so long as the statement is true, is consistent with the product's registration statements, and can be substantiated.

B. Prohibition Against Claims Of Environmental Benefit

The Assurance next prohibits businesses from claiming or representing, directly or by implication, that:

Respondent, its employees or agents, its pest control services/methods and/or pesticide products are environmentally friendly, environmentally responsible, environmentally conscious, environmentally aware, environmentally sensitive, environmentally benign or in any other way make vague, unspecified claims of environmental protection or benefit.

This paragraph precludes any vague, unspecified claims of environmental protection or benefit. However, this prohibition is again limited by the following language in the Assurance:

Nothing in this paragraph shall preclude Respondent from comparing the environmental impacts or benefits of its pest control services/methods and/or pesticide products used with other pesticide services/methods and/or pesticide products intended to control the same target pest(s) as long as such claims are factually accurate, clearly defined as to the environmental benefit(s) considered and substantiated, upon request, under paragraph 11 herein.

Accordingly, a business is not prohibited from making comparative claims of the environmental attributes or impacts of pest control services and methods so long as such claims compare only products used for control of the same target pest and are factually accurate and clearly defined as to the environmental benefits or impacts considered. Comparison to other consumer goods, services and/or activities are inherently misleading and not allowed under the paragraph.

It should also be noted that this paragraph does not prohibit specific claims about the environmental attributes associated with the use of non-pesticide approaches to pest management, so long as the claims are true. For example, the Attorney General would not take action regarding a claim which states, truthfully, that the applicator offers, or uses, to the extent feasible, non-chemical alternatives for pest control.

In this regard it should be emphasized that the Attorney General does not seek to discourage advertising which contains true and complete discussion of the attributes of Integrated Pest Management (IPM) or any other practices employed by an applicator. Although general claims such as "environmentally responsible IPM techniques used" run afoul of this prohibition if pesticides may still be used, more specific claims discussing the environmental attributes of specific pest management practices would not be prohibited so long as such claims are true and are sufficiently qualified to eliminate the possibility that the reader would assume incorrectly that no pesticide will be used. For example, the Attorney General would not take action against an advertisement which states truthfully that an applicator "uses primarily non-chemical techniques, resorting to the limited and focused use of chemical pesticides only if such alternatives to the use of chemical pesticides prove inadequate."*****

C. Preclusion of Claims Relating To Registration Of Pesticides

The next paragraph of the Assurance of Discontinuance prohibits the applicator from representing, directly or by implication, that:

registration of pesticides by the EPA, the DEC, or other regulatory body means that they (i) are safe, non-toxic or harmless, (ii) have been approved, recommended or endorsed by the EPA, the DEC or other regulatory body, or (iii) have been fully tested for all potential adverse effects.

This paragraph is a blanket prohibition against any claim that pesticide registration constitutes an endorsement by the registering agency of the pesticide or establishes that the pesticide used is safe, non-toxic or harmless. This prohibition recognizes that EPA's registration of pesticides is a complicated process which weighs the potential benefits of pesticides against the potential environmental risks associated with the use of the pesticide. It is also consistent with EPA's prohibition of any statements on labels "directly or indirectly implying that the pesticide or device is recommended or endorsed by any agency of the federal government." 40 CFR §156.10(a)(5)(v).

Consistent with this provision, applicators should avoid making any claims regarding the use of pesticides registered by EPA. Because it is unlawful to use unregistered pesticides, the statement that a business uses only "EPA registered pesticides", while literally true, implies that such pesticides are more highly regulated and less toxic than the pesticides used by a competitor. Because the only information that can be communicated by such a claim is misleading, such claims should be avoided.

D. Prohibition Of Unqualified Comparative Claims About The Safety Or Toxicity Of An Applicator’s Pest Control Services Or Pesticides Used.

Finally, the Assurance of Discontinuance prohibits applicators from representing, directly or by implication, that:

Respondent's pest control services/methods and/or pesticide products are safer or less toxic when compared to other consumer products, services or activities unrelated to pest control.

This provision precludes any advertisements comparing the safety or toxicity of pesticides used or pesticide services with products or activities unrelated to pest control, such as common consumer products or everyday activities. For example, this provision would prohibit claims that certain pesticides are safer than table salt, or that the application of pesticides is safer than driving your car. Such comparisons are inherently misleading because they imply that all potential risks associated with both elements of the comparison are fully understood by consumers and can be reliably compared. This is simply not the case. Moreover, such advertisements have a tendency to take advantage of public misconceptions about the safety of common household products.

However, the second sentence of this paragraph clarifies that pest control applicators may make representations or comparisons of the degree of risk associated with their product or services, compared to other methods for control of the same pest, so long as such representations are true, clearly defined as to the risks considered, and capable of substantiation:

Nothing in this paragraph shall preclude Respondent from making representations or comparisons regarding the degree of risk associated with other pest control services/methods and/or pesticide products to control the same pest, if such representations are factually accurate, clearly defined as to the risk(s) considered and substantiated, upon request, under paragraph 11 herein.

For example, this prohibition would not preclude a claim, if true and capable of substantiation, that use of a particular pesticide (or non chemical method of pest control) poses less risk of a specified adverse effect to consumers than would result from the use of a competing pesticide product. It should be noted that evaluation of such claims involving comparison with other pest control products or services must also meet the requirements of Paragraphs A and/or B discussed above.

Of course, any claims which are not true would run afoul of the applicable law and the Assurance. Furthermore, the truth of any claims made must be capable of substantiation. Parties signing the Assurances of Discontinuance agree to provide the Attorney General with substantiation for any claims made by the applicator within 30 days of receiving a written request for substantiation.

Compliance with the standards set forth in the Assurance of Discontinuance by all participants in the pest control industry ensures that all participants compete on a level playing field and that members of the public are not misled, to their detriment, regarding the nature of services being obtained. The Attorney General intends to diligently enforce the terms of the Assurances of Discontinuance and to monitor future industry advertising to ensure compliance with the laws governing deceptive advertising.

ENDNOTES: