On Dec.6, 2006, the EPA published a direct final rule that amended and extended the exceptions from the definition of "pesticide chemical" and "pesticide chemical residue" contained in 40 C.F.R. Section 180.4. 71 Fed. Reg. 70667. The prior definition of "pesticide chemical" and "pesticide chemical residue" under Section 180.4 exempted only food packaging impregnated with insect repellent from these definitions. The EPA states that the exemptions were based on the agency's view at the time of enactment that it had only received applications that called for that particular use and method of application.

The new rule expands the exception to the definition of "pesticide chemical" and "pesticide chemical residue" to include components of food packaging material treated in any manner with any pesticide active ingredient and distributed or sold with the purpose of controlling pests. Currently, packaging material (such as paperboard, polymers or a coating), is considered to be an inert ingredient when a pesticidal formulation is mixed with it, requiring a separate tolerance (or exemption from a tolerance) from the agency.

Excepted food packaging materials will be regulated instead by the Food and Drug Administration as food additives, without regard to the application technique or the mode of action of the active ingredients in the packaging material.

The EPA makes it clear in the direct final rule that the active pesticide ingredients must still be registered as pesticides, and any inert ingredients in the pesticide formulation must be the subject of a tolerance or exemption from the requirement of a tolerance. Only the treated packaging material is excepted from registration or tolerance requirements.

The rule will be effective Feb. 5, 2007, without notice unless the agency receives adverse comments in writing by Jan. 5, 2007. If the EPA receives such comments, it will publish a timely withdrawal.