Department of Pesticide Regulation
Secretary for Environmental Protection
TO: Michael Briansky
Chief Executive Officer
6538 Collins Ave, Suite 403
Miami Beach, FL 33141
Via email: info@EcoMIGHT.com
Subject: NOTICE OF ADVISEMENT FROM THE CALIFORNIA DEPARTMENT OF PESTICIDE REGULATION
Dear Michael Briansky:
This is a notification from the California Department of Pesticide Regulation (DPR) that EcoMIGHT, LLC may be in violation of the provisions of the California Food and Agricultural Code (FAC) and its implementing regulations, Title 3, California Code of Regulations (3 CCR), by manufacturing, delivering, and/or selling misbranded and/or unregistered pesticides into or within California for use in California. DPR's mission is to protect human health and the environment by regulating pesticide sales and use and accelerating the adoption of safer, sustainable pest management. Illegal pesticide sales, distribution, and use in California threaten this mission.
As explained in detail below, DPR has received information that your company's "Whack Out Weeds!" and "EcoMight" products may be misbranded and/or unregistered in violation of California law. Specifically, DPR believes that products your company markets as "organic" and "minimum risk 25b exempt" contain glyphosate and other disqualifying active ingredients. Your company's manufacture, distribution, sale or marketing of such products into or within California for use in California, would violate California law and put communities, workers, and the environment at risk.
A pesticide is defined as "[a]ny substance or mixture of substances which is intended to be used for defoliating plants, regulating plant growth, or for preventing, destroying, or mitigating any pest" (FAC § 12753). A pesticide is "intended to be used" as a pesticide when the person who sells or distributes the product "claims, states, or implies by labeling or otherwise" that the product "can or should be used as pesticide" (3 CCR § 6145). Unless a pesticide product qualifies for an exemption from registration, it must be registered with the United States Environmental Protection Agency (U.S. EPA) and DPR before it can be manufactured, delivered, offered for sale, used, or sold into or within California (See 7 U.S.C. § 136a(a); FAC § 12993).
Products may be exempt from federal registration if, inter alia, the product's active ingredients are listed at Title 40, Code of Federal Regulations (CFR), section 152.25, subdivision (f)1. These products are termed "FIFRA [Federal Insecticide, Fungicide, and Rodenticide Act] 25(b)" products. Products which contain ingredients other than those listed in the above provision or contain any false or misleading statements do not meet the definition of an exempt pesticide, when the product is marketed as a pesticide (See 40 CFR § 152.25(f); 3 CCR § 6147 (a)(5)(D)). Misbranded and/or unregistered pesticide products that do not qualify for an exemption cannot be sold, distributed, or used in California.
DPR believes that your company may be marketing these products as "minimum risk exempt FIFRA section 25b" and "organic" pesticides, and as safe alternatives to glyphosate. Yet, California state laboratory analyses show that sampled products contain glyphosate and other disqualifying active ingredients. The presence of any one of these chemicals in a pesticide product may disqualify the product from the FIFRA section 25b exemption and may violate California law.
Specifically, your company's marketing and advertising materials make the following pesticide and product claims:2
- "organic weed & grass killer"
- "no toxic chemicals"
- "non-toxic and safe,"
- "natural weedkiller"
- "no re-entry period."
- "top choice" for residential purposes (HOA or homeowner associations), "municipalities," "colleges and universities," and "schools."
- "safe for kids and pets when used as directed"
- "glyphosate alternative"
- "glyphosate-free weed killer to help reduce chemical contamination" at a site where it was applied.
- EcoMight supplied turf signs that state: "This area is maintained without the use of: Glyphosate and other Harmful Chemicals Thanks to: EcoMIGHT…" (emphasis in original)
- "naturally organic"
Further, your company's marketing materials claim that the products are "Minimum Risk Exempt FIFRA 25b" stating:
What is Minimum Risk Exempt FIFRA 25b [?] Because the EPA has determined that certain 'Minimum Risk Pesticides' pose little to no risk to human health or the environment, the EPA has exempted them from the requirement that they be registered under the Federal Insecticide, Fungicide, and Rodenticide Act. [FIFRA]. This exemption provision is located in 40 CFR 152.25(f).3
Are EcoMIGHT products registered? EcoMIGHT products are exempt from registration, classified by the United States Environmental Protection Agency as ‘minimum risk’, FIFRA25(b) Exempt. The EPA has determined that certain ‘minimum risk pesticides’ pose little to no risk to human health or the environment, EPA has exempted them from the requirement that they be registered under the Federal Insecticide, Fungicide, and Rodenticide Act. This exemption provision is located in 40 CFR 152.25(f).4
The products sold by your company have labels listing the following active ingredients or combinations of thereof: peppermint oil, potassium chloride, sodium chloride and/or eugenol and the following inert ingredients or combinations thereof: water, soap, potassium benzoate and/or silica.
Yet, California state laboratory results show sampled products contain the following active ingredients:
W.O.W. (Whack Out Weeds!) Non-Selective Weed & Grass Killer
- Glyphosate – 192.0 mg/mL
- Cypermethrin – 0.1 ppm
- Bifenthrin – 2.1 ppm
- Permethrin – 20.0 ppm
- Carbaryl – 30.0 ppm
EcoMIGHT-Pro Weed & Grass Killer
- Glyphosate – 160 mg/mL
- Bifenthrin – 0.037 ppm
- Permethrin – 0.12 ppm
None of the above-listed chemicals qualify for the FIFRA 25b exemption. As a result, your company may be in violation of FAC sections 12991, 12992 and 12993. Section 12992 provides that it unlawful “for any person to sell any adulterated or misbranded pesticide.” Section 12993 provides that it unlawful to “manufacture, deliver or sell any pesticide or any substance or mixture of substances that represented to be a pesticide” when the product is unregistered. Section 12991 and its subdivisions further provide that it is unlawful for a person to make any material or substantial misrepresentations, false promises, engage in illegitimate business practices, or publish and/or distribute false and misleading advertisements concerning pesticides.
Please provide a written response to this Notice of Advisement by close of business on August 31, 2021 to Brian Orlando, a member of my staff, and describe the steps that EcoMight will take to ensure that it is in compliance with California law. Please send the response to Brian Orlando at Brian.Orlando@cdpr.ca.gov.
In the response, please provide:
- Documents relative to each and every sale or delivery into California or within California for each and every “Whack out Weeds” and “EcoMight” product by your company or any subsidiary and/or parent corporation of your company during the time period of July 30, 2017 through to the present. Documents should include the date of sale, number of units sold, the sale price of each product, and the name of each product sold or delivered. DPR does not request any personal identifiable information relative to the buyer, including name, street address, or financial information (payment details) of the buyer. DPR does not seek duplicative documents evidencing the same sale. DPR will accept a spreadsheet listing each sales transaction, including the price, the date, quantity and the name of the pesticide product sold.
- A copy of the printed market/container label for each and every “Whack out Weeds” and “EcoMight” product registered, manufactured, marketed, sold and/or distributed by your company in California during the time period of July 30, 2017 through the present, including but not limited to the final label if a final label was promulgated.
- Copies of any and all advertising, promotional or marketing materials in any format each and every “Whack out Weeds” and “EcoMight” product registered, manufactured, marketed, sold and/or distributed by your company in California during the time period of July 30, 2017 and the present.
- Documentation of your company’s status as a licensed pesticide dealer, broker and/or registrant with the California Department of Pesticide Regulation.
This Notice of Advisement does not limit or preclude DPR from assessing penalties, compelling production of the above-listed documents, or taking any other action authorized under the California Food and Agricultural Code. DPR further reserves the right to bring an action against EcoMight assessing or seeking penalties or other relief for any applicable violations.
If you have any questions concerning this Advisory Letter, please contact me at 916-603-7700 or Donna.Marciano@cdpr.ca.gov.
Original signature by:
Chief, Enforcement Branch
cc: Ms. Karen Ross, CDFA Secretary
Mr. Rick Gurrola, President, California Agricultural Commissioners and Sealers Association
Mr. Matt Salazar, Manager, Toxics Section Enforcement & Compliance Assurance Division, U.S. EPA, Region 9
Ms. Claire Trombadore, Assistant Director, U.S. EPA, Region 9
Ms. Julie Henderson, DPR Acting Director
Dr. Karen Morrison, DPR Acting Chief Deputy Director
Mr. Daniel Rubin, DPR Chief Counsel
Mr. Ken Everett, DPR Assistant Director
Mr. Mr. Joseph Damiano, DPR Branch Chief, Enforcement Headquarters
1 California has adopted similar provisions. (See FAC § 12803; 3 CCR § 6147.)