FIFRA Section 2(ee) Bulletins and “Conflict With Labeling”

This is a reminder regarding use of a pesticide product in accordance with its labeling and the California definition of “Conflict with Labeling”. The pesticide product label and labeling must be followed. Federally registered pesticide labeling includes the statement “It is a violation of federal law to use this product in a manner inconsistent with its registered labeling”. In other words, the label is the law. However, there are certain specific variations allowed by federal law and by California regulations.

Regulatory basis

Section 2(ee) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) defines the phrase “To use any registered pesticide in a manner inconsistent with its labeling”. The Title 3 California Code of Regulations (3 CCR) section 6000 definition of “conflict with labeling” is closely aligned with FIFRA section 2(ee). These definitions allow pesticide users to apply pesticides under certain limited conditions that are not specified on pesticide labeling.

Written bulletins are not required for end users to make applications allowed under FIFRA 2(ee) and in compliance with 3 CCR section 6000, but registrants can and sometimes do issue written 2(ee) bulletins or “recommendations¹“. Although the Department of Pesticide Regulation (DPR) does not require registrants to submit these for registration or prior approval, they are considered labeling [FIFRA section 2(p)] and must be consistent with FIFRA requirements and the registered product labeling.

Claims and uses that are allowed and claims and uses that are not allowed.

FIFRA section 2(ee) and 3 CCR “conflict with labeling” allow that a pesticide may be:

• Used at any dosage, concentration, or frequency less than what is specified on the labeling, unless the labeling specifically prohibits such an application.
• Used to control a target pest not listed on the labeling if the application is to a listed commodity/site and the use against the target pest is not expressly prohibited (e.g., the labeling does not state “use only to control …”).
• Applied by a method of application not expressly prohibited (e.g., the labeling does not state “apply only by the methods” listed or described on the labeling) if other directions are followed. Examples include interpretations of minimum dilution statements to allow various aerial, ground, and airblast application methods.
• Mixed with another pesticide or with a fertilizer, unless expressly prohibited.

A section 2(ee) recommendation or bulletin cannot allow the following:

• Cannot add a crop/site, or expand an existing crop/site.
• Cannot increase the dosage, concentration, or frequency of application.
• Cannot decrease the pre-harvest or restricted entry interval, or the time between applications.
• Cannot change the timing or type of application. Change of timing can include pre-bloom versus post-bloom applications and pre-harvest versus post-harvest applications. Change of application type can include indoor versus outdoor and soil incorporated versus foliar.
• Cannot allow a lower dosage or concentration than specified on the label for antimicrobial pesticides targeted against human pathogens or pre-construction termiticide uses.
• Cannot add chemigation as a method of application.
• Cannot add a method of application if the instructions on the registered labeling cannot be followed.

Additional information is found in the Compendium volume Guidelines for Interpreting Pesticide Laws, Regulations, and Labeling, Chapter 2.

Is a written 2(ee) recommendation or bulletin required in order to allow the use?

No, a written 2(ee) recommendation or bulletin is not required for an end user to make an application allowed under FIFRA 2(ee) and in compliance with 3 CCR section 6000 “conflict with labeling”. In fact, a written FIFRA 2(ee) recommendation or bulletin may not include statements or requirements to the contrary.

End users only need to adhere to the requirements of the registered labeling (FAC section 12973) and may use the exceptions provided by FIFRA 2(ee) and the definition of “conflict with labeling”. Under 3 CCR section 6602, end users are not required to have a copy of the written section 2(ee) recommendation or bulletin at the use site when making an application allowed under these exceptions.

Registrants can and sometimes do issue written 2(ee) recommendations or bulletins. DPR does not require registration or prior approval of these section 2(ee) bulletins or documents. Such written recommendations or bulletins are considered “labeling” [FIFRA section 2(p)] and must be consistent with FIFRA requirements, the registered product labeling, and in compliance with the 3 CCR definition.

Can a Pest Control Adviser (PCA) make a written recommendation for this use?

Yes, PCAs can use the same exceptions as end users provided the written recommendation complies with the registered labeling and the definition of “conflict with labeling”.

What is an enforcement response for a violation of the requirements?

Applicators using a pesticide and PCAs recommending use of a pesticide in conflict with labeling registered with DPR violate FAC sections 12973 and 12971, respectively.

A licensed Pest Control Dealer who sells or delivers a pesticide for a use not shown in the labeling or when any condition of use shown in the labeling cannot be complied with violates 3 CCR section 6564(b).

A registrant who creates a 2(ee) recommendation or bulletin is responsible for ensuring the recommended use is consistent with the labeling registered with the U.S. Environmental Protection Agency and DPR and is allowed under section 2(ee) and 3 CCR section 6000. Registrants should be aware that distribution of an incorrect written section 2(ee) recommendation or bulletin is an unlawful act that can result in DPR compliance action.

For further assistance or for potential product sales or 2(ee) labeling (registration) issues, please contact the Enforcement Branch Liaison assigned to your county.

¹ “Recommendation” as used here should not be confused with the definition in Food and Agricultural Code (FAC) section 11411 for instructions or advice on any agricultural use as to any particular application on any particular piece of property which must be created in writing and only by a licensed Pest Control Adviser.

Sincerely,