WASHINGTON — An Environmental Protection Agency judge has ruled that Microban Products Co. has exceeded EPA health-claim restrictions.
Microban sold an anti-microbial plastic additive to Hasbro Inc. and claimed the material fights germs that cause illness.
Microban, however, said the additive does work as claimed, and faulted the EPA for not having rules that would let it prove its claim, as other government agencies do.
For example, Microban's additive has been approved by the Food and Drug Administration for killing germs in a plastic incision drape used in surgery, said Glenn Cueman, president of Microban in Huntersville, N.C.
But EPA's administrative law judge, William Moran, said that several Microban documents indicate the company was making health claims, when all it was allowed to make were claims that its additive fought odors or prevented product decay.
EPA officials announced Moran's decision Oct. 2.
Microban promotional documents include pictures of petri dishes where areas treated with Microban are free of staphylococcus aureus and E. coli. The documents say tests show ``conclusively'' that Microban reduces bacteria by 99.9 percent, Moran wrote. Microban also says consumers are willing to pay a premium for its products, he wrote.
``Clearly these documents show a consistency on Microban's part to achieve via a backdoor route what EPA had not approved: associating the effectiveness of the product against health-related organisms,'' Moran said.
EPA lawyer Robert Darnell said the judge's ruling ``sends a strong message'' that companies must limit claims to those approved by the EPA.
Hasbro, which had used the Microban additive in its line of Playskool tools but discontinued them after the EPA raised concerns, settled its case with the EPA earlier this year.
EPA lawyers are seeking a penalty of $160,000 from Microban. Moran said he would make a decision on that after Oct. 16. Microban could appeal the decision after the penalty is set, but has not decided if it will, Cueman said.
Cueman said the EPA case stems from 2-year-old internal documents between Microban and Hasbro. Microban since has changed its company literature.
``Our position is E. coli is one of the leading odor-causing organisms, and staph is also a leading odor-causing organism,'' he said.
He also said Microban has documents substantiating its health claims but he said the EPA does not have a procedure in place to review them: ``We're caught in a Catch-22.''