EPA sues The North Face — takes issue with use of 'disease-causing bacteria' prevention wording

On Sept. 22, the Environmental Protection Agency’s Region 9 office in San Francisco announced it had filed a lawsuit against VF Corp. (NYSE: VFC) for the alleged sale and distribution of unregistered pesticides through The North Face. (Click here to read the EPA news release.) 

Essentially, the EPA is asserting that The North Face, in early 2008, sold product in its retail stores and online with product information that made “unsubstantiated claims that the footwear would prevent disease-causing bacteria.”

Steve Rendle, president of VF Outdoor Americas, which includes The North Face, JanSport and Eagle Creek, told SNEWS®, “We do not deny that we slightly misrepresented the product’s performance with hangtag copy that asserted the AgION product we used could do a bit more than it does. It is important to note here that the product we used is EPA registered for the exact use we employed: in a footbed.”

When The North Face was notified about the EPA’s concerns regarding the company’s product performance claims on its footwear in February 2008, Rendle told us the company immediately pulled all of the product in question, changed all of the hangtags and product references on the website, and began working closely with the EPA on a resolution — something the EPA also confirmed.

However, the lawsuit certainly caught The North Face by surprise, Rendle told us. “We were certainly not misusing the product. We were using a registered pesticide exactly as it is supposed to be used,” he said.

And yet, the EPA is alleging the product was unregistered. When we contacted the EPA’s Mary Simms in media relations, she told us that the enforcement officer for the EPA confirmed that the incorporated AgION pesticide was registered. However, because the footwear itself made claims that went beyond what is allowed under the Federal Insecticide, Fungicide and Rodenticide Act, it is the footwear that becomes unregistered.

“When a product makes pesticidal, and in this case specifically, human health claims, the product becomes an unregistered pesticide. The shoe itself became the pesticide when claims went beyond the protection of the shoe into protection of the user. The shoe was never registered, merely the silver zeolite product that is incorporated into it to protect it,” Simms told us.

The product information line that appears to have gotten The North Face into hot water is: “AgION antimicrobial silver agent inhibits the growth of disease-causing bacteria.” This statement appeared on page four of a hangtag booklet (see scanned image of the hangtag to the right) attached to approximately 27 actual styles of footwear, according to Rendle.

When we asked him how the EPA arrived at 70 styles, not 27, he told us the agency was counting men’s, women’s and children’s styles, and all colors in each style to arrive at the higher number.

The above only highlights one claim, but the EPA is alleging three claims against The North Face. The two other claims, which also appeared on hangtags and website information, are:

• “Prevents bacterial and fungal growth”
• “Continuous release of antimicrobial agents”

Rendle told us the company is baffled how the EPA can take issue with those two claims as they come directly from an AgION hangtag (see image below and to the right). Those hangtags have and do appear on shoes from Columbia, adidas, Timberland and others.

Paul Ford, CEO for AgION, told SNEWS that those two claims have been used on AgION hangtags for approximately eight years. “We’ve sold nearly 100 million pairs of shoes with those claims and the product is EPA registered for use in footwear, just as The North Face used it.”

He added, “Our position is that our claims are 100 percent in compliance and that AgION is very safe. AgION will have to get involved.”

We asked the EPA for comment regarding the two AgION hangtag claims it alleges are part of The North Face lawsuit and, as a result, whether or not other footwear companies might come under scrutiny and perhaps AgION itself, but we received no response by deadline.

–Michael Hodgson

SNEWS® View: We were amazed at how many consumer newspaper, newswire and even trade publications immediately jumped on the sexy press release headline, “The North Face Clothing Parent Company Facing Nearly $1M in Federal Fines Following Unsubstantiated Product Claims,” and essentially reprinted the press release as a bylined news headline without actually calling either The North Face or AgION for comment. OK, sure, most took a minute to actually rewrite the lead, but whatever happened to basic journalism skills and fact-checking? Just a phone call or two (oh, we forgot, it’s about getting the story first, not necessarily right) would have revealed there is much more at play here.

IF the two claims that appear on AgION hangtags (“Prevents bacterial and fungal growth” and “Continuous release of antimicrobial agents”) remain at issue as far as the courts are concerned, then it would seem that any footwear company using product promotional material, even if from AgION, that has those claims might soon come under EPA scrutiny. No doubt AgION will become very involved.

Why a lawsuit now, after more than a year of behind-the-scenes dealings between VF lawyers and the EPA legal and enforcement team? Good question. Perhaps it had to do with the fact a new president was inaugurated in 2008 and the EPA is now marching to new orders to be more aggressive in going after violations? Or perhaps it has to do with, and we know this is a cynical view here, the mounting budget deficit? Either way, $1 million seems a bit out there, but that’s just us. Consider that one year ago, in September 2008, the same regional EPA office in San Francisco that is suing The North Face went after and fined Thermwell Products just $5,200 for essentially the same thing — selling an unregistered product with labels that claimed the product eliminated bacteria.

Was The North Face wrong when it stated: “AgION antimicrobial silver agent inhibits the growth of disease-causing bacteria.” Yes, and Rendle does not deny it. But come on here, people. The product was pulled immediately by the company when the EPA contacted it, and the hangtag and packaging literature and website information was corrected. It does not appear to have been intentional or willful.

If there is any lesson to be learned here, it is that marketing and PR departments, especially in large companies, need to stick to the regulatory script when it comes to describing EPA registered products or any government-regulated product. Yeah, we know that government wording isn’t exactly sexy, but if it has been approved, it is the wording and only that wording that can be used. If you are a company executive or head of the marketing or PR department, be sure all of your teams are marching to the same drummer, one that knows the regulatory music rhythm. Had The North Face not gone off script with that one line, we doubt we’d be writing this story today.

–SNEWS® Editors