Colorado Department of Agriculture
Plant Industry Division
Administration and Enforcement of the Pesticide Act
8 CCR 1203-1
Part 2.	Status of products as pesticides.
A substance or mixture of substances will be considered to be a pesticide if:	 
2.1.	The label or labeling of the product bears claims for use as a pesticide.	 
2.2.	Claims or recommendations for use as a pesticide are made in collateral advertising such as publications, advertising literature which does not accompany the product, or advertisements by radio or television.	 
2.3.	Claims or recommendations for use as a pesticide are made verbally or in writing by representatives of the manufacturer or distributor.	 
2.4.	The product is intended for use both as a pesticide and other purposes.
2.5	The product contains one or more substances that are listed as active ingredients in any pesticide that has been registered by EPA as a pesticide under FIFRA and that have no significant commercially valuable use in the product as distributed or sold other than use for a pesticidal purpose.
Part 20.	Statements of Basis, Specific Statutory Authority, and Purpose
20.14	Adopted November 9. 2016- Effective December 30, 2016
Statutory Authority
These amendments to these rules are proposed for adoption by the Commissioner of the Colorado Department of Agriculture (“CDA”) pursuant to his authority under the Pesticide Act ("Act"), specifically § 35-9-118(2)(f), C.R.S
Purpose
The purpose of these proposed rules is to:
 1.	Amend Part 2 of the Rule to further clarify when substances or mixture of substances will be considered to be a pesticide subject to regulation under the Act.  
Factual and Policy Issues
The factual and policy issues encountered when developing these rules include: 
1.	Part 2 of the current Rule lists several factors the Department considers in determining if a substance or mixture of substances is a pesticide that is subject to regulation under the Act, including: (1) if a product bears pesticidal claims; (2) if collateral advertising makes pesticidal claims or recommendations; (3) if pesticidal claims are made verbally or in writing by the manufacturer or distributor and; (4) if the product is intended for use as a pesticide or other purpose.  
2.	Part 2 does not address products that contain pesticides where the manufacturer or distributor has made no pesticidal claims or statement of intended use. This amendment clarifies that the physical presence of a pesticide in a product, for which there is no significant commercially valuable non-pesticidal purpose when the product is used as intended (e.g., applied to the leaves of a plant), is sufficient to establish that the product is a pesticide subject to regulation under the Act – regardless of the lack of any pesticidal claims, advertising or statements or intent by the distributor. 
3.	Recently, it came to the Department’s attention that a product was being sold and distributed in Colorado.  This product was sold as a leaf polish and made absolutely no pesticidal claims. The product was tested and found to contain the pesticide active ingredient pyrethrin.  The Department has subsequently identified other products sold for use on plants that contain other pesticides not disclosed on the label or mentioned in any of the distributor’s product advertising.   
4.	This amendment makes clear that any such product is considered a pesticide under the Act and thus must be registered under the Act in order to be legally distributed in this state.  Products containing pesticidal substances that are not registered are subject to stop sale orders and /or civil penalties. 
5.	This amendment to the Rules implementing Colorado’s Pesticide Act compliments the federal regulations implementing the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 40 C.F.R. §152.15, which similarly requires registration under FIFRA of products containing active ingredients that have no non-pesticidal use, regardless of the absence of pesticidal claims.